BancInsure v. FDIC, No. 14-3063 (10th Cir. 2015)Annotate this Case
Defendant-Appellants Carl McCaffree, Jimmy Helvey, and Sam McCaffree (director-defendants) and the Federal Deposit Insurance Corporation (FDIC) appealed the district court's grant of summary judgment to BancInsure, Inc. BancInsure issued a Directors and Officers Liability Insurance Policy to Columbian and its parent Columbian Financial Corporation (CFC). the Kansas State Bank Commissioner declared Columbian insolvent and appointed the FDIC as receiver. By operation of law, the FDIC-R succeeded to "all rights, titles, powers, and privileges of [Columbian], and of any stockholder, member, accountholder, depositor, officer, or director" of Columbian. BancInsure received notice of potential claims the FDIC-R intended to file against the bank's officers and directors. In anticipation of such a suit, CFC and director-defendant Carl McCaffree brought suit against BancInsure seeking a declaratory judgment that the policy covered claims made after the date Columbian was declared insolvent, but before the expiration of the policy. The district court ultimately held that the policy remained in effect until May 11, 2010, relying in part on its finding that a regulatory endorsement in the policy "provide[d] coverage for actions brought by deposit insurance organizations as receivers during the policy year," which would have been meaningless if the policy terminated upon appointment of a receiver. On appeal, the Tenth Circuit sua sponte determined that no case or controversy existed at the time of the district court's judgment and remanded with instructions to vacate the judgment for lack of jurisdiction. BancInsure filed the instant action against the director-defendants in Kansas state court seeking a declaratory judgment that it owed no duty of coverage to the director-defendants for claims brought against them by the FDIC-R. The FDIC-R joined and removed the action to the federal district court in Kansas. At approximately the same time, the FDIC-R brought claims against several of Columbian's former directors and officers alleging negligence, gross negligence, and breach of fiduciary duty. The district court held that claims by the FDIC-R were unambiguously excluded by the policy's "insured v. insured" exclusion and that BancInsure was not judicially estopped from denying coverage. Finding no reversible error in that judgment, the Tenth Circuit affirmed.