USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-1363
ALLAN S. BIRD, ETC.
Plaintiff, Appellant,
v.
CENTENNIAL INSURANCE COMPANY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, Senior U.S. District Judge]
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Before
Torruella and Stahl, Circuit Judges,
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and DiClerico,* U.S. District Judge.
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Robert B. Carpenter, with whom Louis J. Scerra, Jr., Donnalyn B.
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L. Kahn, and Goldstein & Manello, P.C., were on brief for appellant.
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George C. Rockas, with whom Paul R. Devin and Peabody & Arnold,
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were on brief for appellee.
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December 1, 1993
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*Of the District of New Hampshire, sitting by designation.
STAHL, Circuit Judge. In this appeal, plaintiff-
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appellant Allan S. Bird challenges the district court's entry
of summary judgment against him and in favor of defendant-
appellee Centennial Insurance Company on his claim that
defendant breached two fidelity insurance policies ("the
Policies"). After careful consideration of plaintiff's
arguments, we affirm.
I.
I.
__
BACKGROUND
BACKGROUND
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Plaintiff is the general partner of fifteen limited
partnerships that own and operate residential multi-family
housing projects throughout the United States. The projects
are subsidized to varying degrees by the United States
Department of Housing and Urban Development ("HUD"). To
assist in the operation of the projects, the partnerships had
entered into certain management agreements with Capital Site
Management Company ("Capital") and/or Asset Management
Corporation ("Asset"). Capital managed all of the projects
until September 1987, at which time it became inactive. The
agreements were then taken over by Asset, which can fairly be
described as the corporate reincarnation of Capital.
John Panagako was the president and treasurer of
Capital and owned 50% of the company's stock. Panagako's
wife, Janice Panagako, owned the other 50%. John and Janice
Panagako were also the only directors of Capital; however,
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Janice Panagako's duties were clerical and secretarial in
nature. No formal directors' meetings were ever held.
Asset's structure was identical to Capital's except for the
fact that John Panagako was Asset's sole shareholder. It is
clear from the record that John Panagako had complete control
over both of these corporations.
Each of the management agreements contained a
provision requiring the managing agent, i.e., Capital or
Asset, to procure fidelity insurance to protect against loss
due to fraudulent or dishonest acts committed by its
employees. In relevant part, the provision states:
19. Fidelity Bond. The Agent will
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furnish, at his [sic] own expense, a
fidality [sic] bond in the principal sum
of at least an amount equal to the
[project's] gross potential income for
two months and is [sic] conditioned to
___ __ ___________ __
protect the Owner and [the Secretary of
_______ ___ _____ ___ ___ _________ __
HUD and the mortgagee] against
___ ___ ___ _________
misapplication of project funds by the
Agent and its employees.1
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1. Plaintiff contends that the inclusion of this provision
was mandated by HUD "regulations." However, the record does
not reflect, and we cannot locate, any HUD regulation which
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affirmatively requires managing agents of HUD-subsidized
properties to purchase fidelity bonds. Rather, it appears
that plaintiff's argument is premised upon (1) a provision of
the HUD Handbook, 4381.5 REV-1, which requires property
managers to obtain fidelity coverage for both principals of
the management entity and "all persons who participate
directly or indirectly in the management and maintenance of
the project and its assets, accounts and records"; and (2)
the affidavit of G. Richard Dunnells, former Deputy Assistant
Secretary for Housing Management at HUD, which states that
the aforementioned Handbook provision was promulgated in
response to 24 C.F.R. 207.10, which requires the mortgagor
of HUD-insured properties "to keep the property insured by a
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(Emphasis supplied). Apparently in response to this
provision, Capital and Asset secured from defendant the
Policies at issue in this litigation. In relevant part, the
Policies provided coverage for the "[l]oss of money,
securities and other property which the insured shall sustain
. . . through any fraudulent or dishonest act or acts
committed by any of the employees acting alone or in
__ ___ __ ___ _________
collusion with others." (Emphasis supplied). The term
"employee" was then, in relevant part, defined as follows:
[A]ny natural person (except a director
or trustee of the insured, if a
corporation, who is not also an officer
or employee thereof in some other
capacity) while in the regular service of
the insured in the ordinary course of the
insured's business during the Effective
Period of this insuring form and whom the
___ ____ ___
insured . . . has the right to govern and
_______ ___ ___ _____ __ ______ ___
direct in the performance of such
______ __ ___ ___________ __ ____
service, but does not mean any broker,
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factor, commission merchant, consignee,
contractor or agent or other
representative of the same general
character.
(Emphasis supplied). Importantly, however, despite the
directives of paragraph 19 of the management agreements, (1)
only Capital and Asset were named as insureds under the
Policies, and (2) the terms of the Policies excluded from
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standard policy or policies against fire and such other
hazards as the Commissioner, upon the insurance of the
mortgage, may stipulate."
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coverage misapplications by the managing agents, i.e., the
insureds, themselves.2
By February 1989, plaintiff had become concerned
that John Panagako was making improper payments from project
funds. Accordingly, plaintiff terminated the management
agreements. Subsequently, plaintiff filed a state court
action against John Panagako, Capital, and Asset for breach
of fiduciary duty, breach of contract, conversion,
misrepresentation, fraud, money had and received, breach of
the covenant of good faith and fair dealing, and violation of
the Massachusetts Unfair Trade Practices statute. See Bird
___ ____
v. Capital Site Management Co., Civil No. 89-1713-C (Mass.
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Super. Ct. 1989). A jury verdict was returned in plaintiff's
favor on all counts, and damages were ultimately assessed at
nearly $1.2 million.
In July 1990, plaintiff initiated the instant
action in Massachusetts Superior Court, asserting that he was
entitled to collect as a third-party beneficiary under the
Policies. Defendant removed the case to the district court
and subsequently moved for summary judgment, arguing that no
coverage existed because plaintiff was not an insured under
the Policies. Thereafter, plaintiff obtained an assignment
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2. Specifically, Exclusion A of the Policies provided:
"This insuring form does not apply . . . to loss due to any
fraudulent, dishonest or criminal act by any insured or a
partner therein, whether acting alone or in collusion with
others . . . ."
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of all the right, title, and interest of Capital and Asset in
the Policies, and moved for leave to file an amended
complaint so as to jettison his third-party beneficiary
theory and assert in its place an entitlement to coverage as
a direct beneficiary under the Policies. The motion for
leave to file the amended complaint was allowed.
In January 1992, defendant filed a second motion
for summary judgment, arguing primarily that plaintiff could
not collect under the Policies because the fraudulent and
dishonest acts giving rise to the claim were not committed by
an "employee" of the insureds, but instead were committed by
the insureds' "alter ego."3 Plaintiff opposed the motion,
arguing inter alia, that defendant should be estopped from
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denying coverage under the policies. He also filed a
conditional motion, pursuant to Fed. R. Civ. P. 56(f),4 for
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3. We use the term "alter ego" as a shorthand way of
identifying any natural person whom the corporate insured
does not have "the right to govern and direct in the
performance of [his/her] service." As noted previously,
under the terms of the Policies, such an alter ego is not
considered an employee of the corporate insured. And,
because the Policies only cover fraudulent or dishonest acts
by employees of the corporate insureds, fraudulent or
dishonest acts by an alter ego of the insureds are outside
the scope of coverage.
4. Rule 56(f) provides:
When Affidavits are Unavailable. Should it
When Affidavits are Unavailable.
appear from the affidavits of a party opposing the
[Rule 56] motion that the party cannot for reasons
stated present by affidavit facts essential to
justify the party's opposition, the court may
refuse the application for judgment or may order a
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further discovery relevant to his newly-raised estoppel
argument. In February 1993, the district court issued a
memorandum and order granting defendant's second motion for
summary judgment. In so doing, the court held that John
Panagako was not an employee of the insureds, and that the
Policies therefore did not cover his fraudulent and/or
dishonest acts. See supra note 3. It also rejected
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plaintiff's estoppel argument, reasoning that the doctrine of
"unclean hands" barred any recovery by plaintiff. Finally,
the court denied plaintiff's Rule 56(f) motion. It is from
these decisions that plaintiff appeals.
II.
II.
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SUMMARY JUDGMENT STANDARD
SUMMARY JUDGMENT STANDARD
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Summary judgment permits a court to "`pierce the
boilerplate of the pleadings and assay the parties' proof in
order to determine whether trial is actually required.'"
Santiago v. Sherwin Williams Co., 3 F.3d 546, 548 (1st Cir.
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1993) (quoting Wynne v. Tufts Univ. Sch. of Medicine, 976
_____ ______________________________
F.2d 791, 794 (1st Cir. 1992), cert. denied, 113 S. Ct. 1845
_____ ______
(1993)). It must be granted when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
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continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or
may make such other order as is just.
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moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c). Our review of the allowance of a
summary judgment motion is plenary. Levy v. FDIC, No. 92-
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2135, slip op. at 6 (1st Cir. Oct. 19, 1993).
It is against this backdrop that we evaluate
plaintiff's contentions.
III.
III.
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DISCUSSION5
DISCUSSION5
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Plaintiff essentially makes three arguments on
appeal: (1) that the district court erred in concluding, as
a matter of law, that the fraudulent and dishonest acts
giving rise to plaintiff's claim were not committed by an
employee of the insureds, but instead were committed by the
insureds' alter ego; (2) that the court erred in rejecting
his claim that defendant should, as a matter of law, be
estopped from denying coverage under the Policies; and (3)
that the court erred in denying his alternative Rule 56(f)
motion for additional discovery on the issue of estoppel. We
discuss each argument in turn.
A. Was John Panagako an Employee of Capital and Allied
A. Was John Panagako an Employee of Capital and Allied
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or was he their Alter Ego?
or was he their Alter Ego?
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5. Because the parties agree that Massachusetts law governs
this dispute, and because there is at least a "reasonable
relation" between the dispute and the forum whose law has
been selected by the parties, we will forego an independent
analysis of the choice-of-law issue and apply Massachusetts
law. See Commercial Union Ins. Co. v. Walbrook Ins. Co.,
___ __________________________ ___________________
Ltd., No. 92-2415, slip op. at 2, n.1 (1st Cir. Sept. 28,
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1993).
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The bulk of plaintiff's brief is directed at
attacking the district court's ruling that Panagako was an
alter ego, and not an employee, of the corporate insureds.
The attack primarily is carried out on two fronts. First,
accepting the district court's conclusion that the definition
of the term "employee" is unambiguous, plaintiff argues that
the court erred in concluding that John Panagako fell outside
the definition's boundaries. Second, and alternatively,
plaintiff argues that the definition of the term employee is
ambiguous, and that this ambiguity must be resolved in his
favor under Massachusetts law. E.g., Massachusetts Bay
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Transp. Auth. v. Allianz Ins. Co., Inc., 597 N.E.2d 439, 441
_____________ _______________________
(Mass. 1992).6 We disagree with both of plaintiff's
positions.
1. Plaintiff's First Argument
1. Plaintiff's First Argument
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In addressing plaintiff's first argument, that the
Policies unambiguously provide coverage for the fraudulent
and/or dishonest acts committed by John Panagako, we begin
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6. Relying on a series of cases regarding corporate "veil
piercing," and defining the "alter ego defense" here at issue
as the mere defensive application of this veil piercing
doctrine, plaintiff also devotes several pages of his brief
to arguing that Massachusetts courts would not recognize the
defense. Plaintiff's argument in this regard is
fundamentally flawed. The alter ego defense asserted by
defendant is not a common law defense; rather, it is a
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defense derived from the language of the Policies themselves.
___ ________ __ ___ ________ __________
As such, the common law tort cases relied upon by plaintiff
in his reverse veil piercing argument are inapposite to the
contract dispute before us.
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with some general ground rules for interpreting insurance
contracts. The construction of language in an insurance
contract is a legal determination, see J.I. Corp. v. Federal
___ __________ _______
Ins. Co., 920 F.2d 118, 119 (1st Cir. 1990) (collecting
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Massachusetts cases), which we review de novo, see Falmouth
__ ____ ___ ________
Nat'l Bank v. Ticor Title Ins. Co., 920 F.2d 1058, 1061 (1st
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Cir. 1990). Where there is no ambiguity in the language at
issue, we will interpret it "according to the ordinary
meaning of the words contained in its provisions." J.I.
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Corp., 920 F.2d at 119. The language of a contract is
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considered ambiguous only if its terms "are fairly
susceptible to more than one construction." Id.
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Where the intention of the parties as to who are
employees is expressed in a fidelity policy, that intention
will be given effect. See 13 Ronald A. Anderson and Mark S.
___
Rhodes, Couch on Insurance 2d, 46:25 at 33 (1982). Here,
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the parties agreed that, inter alia, only those natural
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persons "whom the insured . . . has the right to govern and
direct in the performance of [their] service" would be
"employees" covered by the Policies. Thus, if John Panagako
was not subject to governance and direction by Capital and/or
Allied, he was not an employee of the insureds as that term
is defined by the Policies.
As we have said, the record clearly reveals that
John Panagako was not subject to governance and direction by
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Capital or Allied, in that he was in complete control of both
corporations. He owned 50% of Capital's and 100% of Allied's
stock and was the president and treasurer of both
corporations. He and his wife Janice, whose duties were
clerical and secretarial in nature, were the only two
directors of the corporations. No formal directors' meetings
were ever held.
Indeed, plaintiff does not dispute the fact that
John Panagako was in complete control of Capital and Allied.
Instead, he premises his challenge to the district court's
determination that Panagako was not an employee upon two
contentions: (1) that the corporations had the theoretical
right to govern and direct Panagako, making him an employee
under the terms of the Policies; and (2) that "the right to
govern and direct language was merely intended to distinguish
those persons within the corporation[s] whose acts are not
covered by the Policies (i.e., employees) from those persons
outside of the corporation[s] whose acts are not covered by
the Policies (i.e., independent contractors and the like)."
With respect to plaintiff's first contention, we
join those courts that have passed on the issue and reject
the claim that the theoretical right to govern and direct a
dominant corporate actor is sufficient to render that actor
an employee under the definition of employee set forth in the
Policies. See Employer's Admin. Servs., Inc. v. Hartford
___ ________________________________ ________
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Accident and Indem. Co., 709 P.2d 559, 562-63 (Ariz. App.
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1985); Kerr v. Aetna Casualty & Surety Co., 350 F.2d 146,
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154-55 (4th Cir. 1965); see also, e.g., Matter of World
___ ____ ____ ________________
Hospitality Ltd., 983 F.2d 650, 651-53 (5th Cir. 1993)
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(interpreting identical "right to govern and direct" language
in a fidelity policy as excluding from the definition of
employee a majority shareholder who dominated his
corporation); California Union Ins. v. American Diversified
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Sav. Bank, 948 F.2d 556, 566 (9th Cir. 1991) (same); Three
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Garden Village Ltd. Partnership v. United States Fidelity &
________________________________ _________________________
Guar. Co., 567 A.2d 85, 90-92 (Md. 1989) (same). We think it
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apparent that the "right" to govern and direct referred to in
the Policies must be more than an ephemeral right inhering
generally in the corporate form; rather, it must have some
grounding in reality. Cf. Kerr, 350 F.2d at 154 (describing
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corporation's "right," under circumstances similar to those
presented here, as "unrealistic" and "theoretical"). In this
case, the argument that Capital and Allied had the right to
govern and direct John Panagako lacks any credible basis.
Accordingly, we do not accept it. Cf. J.I. Corp., 920 F.2d
___ __________
at 119 (insurance contracts should be construed according to
the "`fair and reasonable meaning of the words in which the
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agreement of the parties is expressed'") (emphasis supplied)
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(quoting Cody v. Connecticut Gen. Life Ins. Co., 439 N.E.2d
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234, 237 (Mass. 1986)).7
With respect to plaintiff's second contention, we
think it sufficient to state that the interpretation
plaintiff would have us ascribe to the "right to govern and
direct" language in the Policies is tortured to the point of
absurdity. It is obvious that this language, far from being
included merely to distinguish employees from those non-
employee actors specified in the Policies, materially limits
the definition of the term "employee" to those persons over
whom the corporate insureds have control. Accordingly, we so
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7. Our conclusion also is supported by policy
considerations. As the Fifth Circuit has observed:
A corporation can only act through its officers and
directors. When one person owns a controlling
interest in the corporation and dominates the
corporation's actions, his acts are the
corporation's acts. Allowing the corporation to
recover for the owner's fraudulent or dishonest
conduct would essentially allow the corporation to
recover for its own fraudulent or dishonest acts.
The [fidelity] bonds, however, were clearly
designed to insure the corporations against their
employee's [sic] dishonest acts and not their own
dishonest acts.
Matter of World Hospitality, 983 F.2d at 652 (citing
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California Union Ins., 948 F.2d at 566). The fact that
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plaintiff, and not the insureds, is seeking coverage under
the Policies does not diminish the force of these
considerations in this case, for plaintiff is pressing his
claim as an assignee. As such, his rights under the Policies
are limited to those of the assignors. See 17 Couch on
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Insurance 2d, 63A:267 at 146 (1983) ("It must be recognized
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that the assignee can receive no greater rights than those of
the assignor.").
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read it. Cf. Plymouth Rubber Co. Inc. v. Insurance Co. of N.
___ ________________________ ___________________
Am., 465 N.E.2d 1234, 1238 (Mass. App. 1984) (declining to
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"torture" the meaning of a clause in an insurance contract
where it was understandable in its "usual and ordinary
sense") (citation omitted).
2. Plaintiff's Second Argument
2. Plaintiff's Second Argument
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Plaintiff's second and alternative argument, that
the definition of the term "employee" is ambiguous and that
this ambiguity must be resolved in his favor, requires little
discussion. In making his alternative argument, plaintiff
does not explain how the definition of the term might be
ambiguous. Nor does he make any attempt either to
distinguish or to disagree with the several cases which have
treated this very definition as unambiguous. See, e.g.,
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Matter of World Hospitality, 983 F.2d at 651-53; California
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Union Ins., 948 F.2d at 566-67; Three Garden Village, 567
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A.2d at 90-92; Employer's Admin. Servs., 709 P.2d at 562.
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Accordingly, his argument being perfunctory, we deem it
waived. See United States v. Innamorati, 996 F.2d 456, 468
___ _____________ __________
(1st Cir.) (issues adverted to in a perfunctory manner and
without developed argumentation deemed waived on appeal),
cert. denied, 62 U.S.L.W. 3320 (Nov. 2, 1993).8
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8. In that section of his brief where plaintiff
perfunctorily asserts that the terms "employee" and
"insured," see infra note 9, are ambiguous, he also seeks to
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introduce extrinsic evidence that the Policies at issue were
mandated by HUD "regulations," but see supra note 1. In so
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In sum, we reject plaintiff's challenge to the
district court's determination that John Panagako was not an
employee, but rather was an alter ego, of the insureds.9
B. Should Defendant be Estopped from Denying Coverage
B. Should Defendant be Estopped from Denying Coverage
________________________________________________________
Under the Policies?
Under the Policies?
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Plaintiff's second argument, that the district
court erred in refusing, as a matter of law, to hold
defendant estopped from denying coverage, is based upon his
claim that defendant knew of Capital's and Allied's corporate
structures at the time the Policies were issued. See
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Fidelity and Deposit Co. v. USAFORM Hail Pool, Inc., 318 F.
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Supp. 1301, 1305, 1308-09 (M.D. Fla. 1970) (insurer estopped
from asserting alter ego defense where, inter alia, it (1)
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stipulated that the dominant shareholder was an employee
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doing, he asserts that this fact will help to enlighten us as
to the meaning of these purportedly ambiguous terms. See
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Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580,
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586 (1st Cir. 1993) (extrinsic evidence admissible to clarify
ambiguous contractual provisions).
Even if we were to assume arguendo the truth of
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plaintiff's assertion, we do not see how such fact would tend
to clarify anything at issue in this litigation. At most,
the "regulations" to which plaintiff draws our attention tend
to reinforce the perception that the Policies were not
written in accordance with the specifications of HUD and
paragraph 19 of the management agreements. They do not,
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however, shed light on what the parties intended when they
included the disputed terms in the Policies.
9. Because we so rule, we need not reach defendant's other
proffered basis for affirmance, i.e., that Exclusion A, see
___
supra note 2, is applicable because John Panagako, as the
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alter ego of Capital and Allied, was an "insured" under the
terms of the Policies. Nor, obviously, need we discuss
plaintiff's cursory argument that the meaning of the term
"insured" in Exclusion A is ambiguous.
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under the fidelity bond, and (2) "knew everything" about the
insured's operation), affirmed in part, vacated in part, 463
________ __ ____ _______ __ ____
F.2d 4 (5th Cir. 1972). While we think that the USAFORM case
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is easily distinguishable from the present situation, we
believe that plaintiff's estoppel claim founders for an even
simpler reason. As the district court noted, because
plaintiff is proceeding as the assignee of Capital's and
Allied's rights under the Policies, he is subject to any
defenses that defendant could have interposed against Capital
and Allied, the assignors. See Great Am. Ins. Co. v. United
___ __________________ ______
States, 575 F.2d 1031, 1034 (2d Cir. 1978). One defense to
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the equitable claim of estoppel is the doctrine of "unclean
hands." See Peabody Gas & Oil Co. v. Standard Oil Co., 187
___ _____________________ ________________
N.E. 112, 113 (Mass. 1933) ("[O]ne must come into a court of
equity with clean hands in order to secure relief . . . .").
Here, Capital and Allied were adjudged liable for the
fraudulent and/or dishonest actions underlying this suit. As
such, the district court correctly ruled that any claim of
estoppel they might have asserted against defendant would
have failed because of their unclean hands. Plaintiff, as
their assignee, is therefore subject to the same fate.
Accordingly, we reject plaintiff's challenge to the
district court's refusal to hold defendant estopped from
denying coverage.
C. Should Plaintiff's Rule 56(f) Motion Have Been
C. Should Plaintiff's Rule 56(f) Motion Have Been
________________________________________________________
Granted?
Granted?
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Finally, plaintiff contends that the court erred in
denying his Rule 56(f) motion for additional discovery on the
issue of estoppel. Once again, his argument is without
merit.
Rule 56(f) offers an "`escape hatch'" to a party
opposing a summary judgment motion who "genuinely requires
additional time to marshal `facts essential to justify its
opposition.'" Mattoon v. City of Pittsfield, 980 F.2d 1, 7
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(1st Cir. 1992) (quoting Paterson-Leitch Co. v. Massachusetts
___________________ _____________
Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988)).
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Under Rule 56(f), the movant is required (1) to articulate a
plausible basis for its belief that the requested discovery
would raise a trialworthy issue, and (2) to demonstrate good
cause for failing to have conducted the discovery earlier.
Mattoon, 980 F.2d at 7. Our review of an order denying
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relief under Rule 56(f) is only for an abuse of discretion.
Id.
___
As we have stated, plaintiff's estoppel argument is
doomed by the fact that, as an assignee, plaintiff is subject
to defendant's unclean hands defense. Moreover, the record
reveals that this defense must prevail as a matter of law.
It therefore follows that there is no need for discovery on
the issue of estoppel.
Accordingly, the district court did not abuse its
discretion in denying plaintiff's Rule 56(f) motion.
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IV.
IV.
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CONCLUSION
CONCLUSION
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For the reasons herein stated, the district court
did not err in granting defendant's second motion for summary
judgment and denying plaintiff's Rule 56(f) motion for
additional discovery.
Affirmed. Costs to appellee.
Affirmed.
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