PER CURIAM:
This case requires us to determine whether, under Alabama law, a financial institution bond's definition of "counterfeit" — "an imitation which is intended to deceive and to be taken as an original" —
The Bank of Brewton (the "Bank"), is a small, privately held bank located in Escambia County, Alabama. At all times relevant to this appeal, the Bank was covered by a financial institution bond
Over the years, the Bank made and renewed a number of loans to its long-time customer, Jackson Hines, for which Hines pledged various assets as collateral. In November 2005, as collateral for one of these loans, Hines assigned 180 shares of stock in The Securance Group ("TSG") to the Bank and delivered to the Bank a stock certificate representing these shares ("Certificate No. 2").
Upon inquiry, Hines explained that he had inadvertently given the Bank a copy and had since lost the original. Hines informed TSG that he had lost Certificate No. 2, asserted that he had not pledged or encumbered Certificate No. 2 other than with the Bank, and requested a replacement certificate. TSG issued a new certificate ("Certificate No. 11") representing the same 180 shares, which Hines then delivered to the Bank.
In December 2009, the Bank consolidated all of Hines's outstanding loans into one loan of approximately $1.5 million and also issued an additional loan of approximately $95,000 to cover the fees associated with the consolidation. These loans were secured, in part, by the 360 shares of TSG stock.
In April 2010, the other shoe dropped. TSG's president, who was also a member of the Bank's board, discovered that in 2007, Hines had assigned the 180 shares of TSG stock represented by Certificate No. 2 to another bank. At that time Hines had also delivered the original Certificate No. 2 to the other bank. TSG's president promptly informed the Bank of this discovery, notifying it that as a result, Certificate No. 11 was void and of no effect. The Bank asked Hines to replace the 180 shares with other collateral, but he instead defaulted on the December 2009 loans and filed for bankruptcy.
The Bank promptly filed a claim with Travelers for the loss incurred by Hines's default. Travelers tentatively took the position that the loss was not covered by the
After discovery, Travelers moved for summary judgment. Travelers argued, inter alia, that the Bank's loss was not covered by the Bond because the loss did not stem directly from the Bank's having relied in good faith on the counterfeit Certificate No. 2. Specifically, Travelers pointed out that the loss complained of by the Bank occurred in connection with the December 2009 loans, and that the Bank knew as early as April 2009 that Certificate No. 2 was a copy.
The Bank then asserted for the first time in its response that either Certificate No. 2 or Certificate No. 11 would qualify as a counterfeit security, on which losses stemming directly from good-faith reliance would be covered under the Bond. Travelers, in its reply brief, contended that it was unaware that the Bank was proceeding on the theory that Certificate No. 11 qualified as a counterfeit, but that, in any event, Certificate No. 11 could not be the basis of a claim under the Bond because it was not a counterfeit. The Bank moved to strike Travelers's reply brief or, in the alternative, for leave to file a surreply, on the ground that Travelers's argument that Certificate No. 11 was not a counterfeit was "an entirely new position which was not asserted in Travelers' summary judgment motion." After the District Court granted the Bank leave to file a surreply, the Bank contended that Certificate No. 11 was a counterfeit because it was intended to replace and represent the original Certificate No. 2.
The District Court granted summary judgment for Travelers. The court considered whether either the copied Certificate No. 2 or the original Certificate No. 11 was a counterfeit security and, if so, whether the Bank's loss was directly caused by good-faith reliance on such certificate. The court found that any loss sustained in connection with Certificate No. 2 was not covered because such a loss did not follow directly from the Bank's reliance on the certificate. Following the discovery that Certificate No. 2 was a copy in April 2009, the Bank had expressly stated that it "considers Certificate #2 null and void and releases Certificate #2 and accepts Certificate #11 as collateral on [Hines's] current debts." Thus, by its own admission, the December 2009 loan could not have been made in reliance on Certificate No. 2, and certainly not in good-faith reliance.
The District Court also concluded that any claim based on a loss flowing from good-faith reliance on Certificate No. 11 was not covered by the Bond. The court explained that Certificate No. 11 was not a counterfeit under the terms of the Bond because it was not an imitation purporting to be an authentic document; rather, Certificate No. 11 was an authentic document that happened to be null and void when issued.
The Bank timely appealed from the grant of summary judgment. We have jurisdiction under 28 U.S.C. §§ 1332(a) and 1291.
We review the grant or denial of a motion for summary judgment de novo.
On appeal, the Bank argues that the District Court erred in finding that Certificate No. 11 was not a "counterfeit" under the terms of the Bond.
Because Alabama substantive law applies to this diversity action, our task is to divine what an Alabama court would likely hold if presented with this case. Goodwin v. George Fischer Foundry Sys., Inc., 769 F.2d 708, 711 (11th Cir.1985); cf. Am. Cas. Co. of Reading, Pa. v. Etowah Bank, 288 F.3d 1282, 1285 (11th Cir.2002) (applying Georgia substantive law to a diversity dispute concerning coverage under a financial institution bond). To do so, we look first to whether Alabama courts have spoken on the issue. While there does not appear to be any precedent precisely on point, an Alabama Supreme Court opinion cites favorably to a Sixth Circuit case that is instructive. See Fidelity & Casualty Co. v. Bank of Commerce, 285 Ala. 580, 234 So.2d 871, 877 (1970) (holding that a loss sustained by a bank in reliance on fabricated invoices was not covered by the bank's bond, citing First National Bank of Memphis v. Aetna Casualty & Surety Co., 309 F.2d 702 (6th Cir.1962) as support for its holding).
In First National Bank of Memphis, the Sixth Circuit was confronted with the issue of whether a loss caused by a bank's reliance on warehouse receipts indicating (falsely) that the debtor possessed approximately 1.3 million bushels of soy beans was covered under a bankers blanket bond (the predecessor to a financial institution bond). 309 F.2d at 703-04. The court concluded that the loss was not covered under the bond because the warehouse receipts were not forged or counterfeited. Id. at 705. Instead, "[t]hey were signed and issued by the [warehouse owner] and endorsed by [the debtor], all by duly authorized officers. Falsity lies in the representation of facts contained in the warehouse certificates and not in the genuineness of their execution." Id.
Construing Texas law, our court has also explained the distinction between fraudulently procured documents and counterfeit documents, in Bank of the Southwest v. National Surety Co., 477 F.2d 73 (5th Cir.1973).
The bank argued that it should recover because the bond contained a provision covering losses sustained on counterfeited documents. Looking to the definition of "counterfeited," defined in the bond as "only an imitation of a security document or other written instrument ... which is intended to deceive and to be taken for an original," the court concluded that the bank's loss was not within the coverage provided by the bond. Id. at 77 (emphasis omitted). "Both the License Receipt and the Title Certificate were authentic, albeit the product of fraudulent misrepresentations to the State authorities. Thus, neither could have been `counterfeit.'" Id.
We find the reasoning in these cases to be compelling. An attempt to deceive by means of a document that imitates the appearance of an authentic original is not the same as an attempt to deceive by means of false factual representations implicit in an authentic document. To conflate the two, as the Bank would have us do, would "obliterate elementary distinctions among the techniques of deceptions[,]... distinctions [which] are recognized in ordinary and commercial usage and ... preserved in the bond." Exch. Nat'l Bank of Olean v. Ins. Co. of N. Am., 341 F.2d 673, 676 (2d Cir.1965).
Here, as in First National, the falsity at issue "lies in the representation of facts contained in [Certificate No. 11] and not in the genuineness of [its] execution." 309 F.2d at 705. The Bond does not cover losses resulting from every document tainted by fraud. Instead, the Bond provides coverage for a subset of deception-based losses — those stemming from documents that imitate an original. The difference hinges on the nature of the underlying misrepresentation. While counterfeit documents deceive by misrepresenting authenticity, Certificate No. 11's deception concerned a misrepresentation of value. As in Bank of Southwest, there is no question that the document at issue was authentic — Certificate No. 11 was issued by TSG and numbered, dated, and signed by the appropriate officer just like every other stock certificate it issues; the problem, simply, was that because it was obtained under false pretenses, it had no value. See 477 F.2d at 77.
In sum, we conclude that although Certificate No. 11 was fraudulently procured, and as such, valueless, it was an authentic document and thus not "counterfeit" under the terms of the Bond. Accordingly, the judgment of the District Court is
AFFIRMED.