Zions First National Bank, N.A. v. Fox & Co.
Zions First National Bank, N.A. v. Fox & Co.
Opinion of the Court
Plaintiff Zions First National Bank (Zions) appeals the trial court’s grant of summary judgment in favor of defendants Fox & Company (Fox), an accounting firm, and Charles H. Foote, an accountant. Zions claims the trial court erred in finding that, as a matter of law, Zions does not have a claim for negligence, partial indemnity, or contribution for monies it paid in settlement for damages partially caused by Fox and Foote. We affirm.
This dispute arose out of an action brought against Zions in its capacity as personal representative of Jerome B. Pepper’s estate and as the trustee of trusts that Pepper and his wife created. As personal representative, Zions assumed control of various businesses that Pepper had owned or controlled. After receiving the assurances of Foote,
The Pepper estate closed in the fall of 1981. In April 1982, the Pepper beneficiaries filed an action against Zions. The beneficiaries asserted five claims for relief, claiming that (1) Zions committed fraud, mismanagement, and self-dealing as the estate’s executor, causing the estate’s assets to dissipate; (2) as trustee, Zions should have charged itself, as personal representative, with breach of fiduciary duty for failing to transfer the estate’s assets to the trustee prior to the personal representative’s bad acts; (3 & 4) Zions negligently carried out its duties as trustee of Mr. and Mrs. Pepper’s trusts and breached its fiduciary duty; and (5) the court should award the beneficiaries punitive damages for the previously alleged wrongs. The beneficiaries specifically alleged that they incurred damage “as the businesses continued to be operated when in fact they were not profitable, and continued operation wasted estate assets.”
In May 1992, Zions and the Pepper plaintiffs resolved the litigation through a stipulated settlement agreement. Pursuant to the agreement, Zions paid $2.8 million in compensation to the Pepper plaintiffs in settlement of all five claims described above.
After settling with the beneficiaries, Zions filed this action seeking relief for the damages it claims to have suffered from Foote’s assurances and Fox’s negligently performed audit. Zions seeks to recover from Fox and Foote that portion of the settlement amount it paid to the Pepper plaintiffs that it would have avoided but for defendants’ negligence. Zions claims that it would have sold the businesses earlier had Fox’s audit been accurate and thus that Zions could have avoided some of its liability to the estate.
The district court granted summary judgment against Zions. Summary judgment poses a question of law that we review for correctness. Winegar v. Froerer Corp., 813 P.2d 104, 107 (Utah 1991). We will affirm a grant of summary judgment only where no genuine issue of material fact exists. Id.
Whether we characterize Zions’ claim as one for indemnity, partial indemnity, contribution, or negligence, Zions must still show that the conduct of Fox and Foote caused its losses. Those losses, however, can be measured only by the undifferentiated sum Zions paid in settlement of all the Pepper claims, including those entirely unrelated to the acts of Fox and Foote. A trier of fact simply has no practical way to distinguish, in retrospect, what portion of the settlement payment was attributable to Zions’ independent liability and what portion, if any, was caused by the conduct of Fox and Foote.
Zions’ suggestion that such an allocation might legitimately be undertaken now overlooks the enormous and unfair burdens defendants would have to bear in a trial. Zions, of course, would have an incentive to claim that it paid the major part of the settlement amount for the claims for which it has sought third-party liability against Foote and Fox rather than for those claims for which it was independently liable. The Pepper plaintiffs are not a party to this action and have no incentive to participate in any helpful way. Furthermore, that they or Zions even addressed questions of third-party liability, or even of separate itemization of their claims, at the time of the settlement is unlikely. As we observed above, private settlement negotiations simply do not lend themselves to post-settlement deconstruction.
. Foote, initially a partner at the firm of Main Hurdman, was the accountant for Jerome Pepper’s various businesses. He joined Fox in May 1980, where he continued to serve as an accountant for those businesses after Jerome Pepper’s death.
. Zions relies on Harmon City v. Nielsen & Senior, 907 P.2d 1162 (Utah 1995), for the proposition that a settling defendant can sue a third party to recover the settlement amount. Harmon City is inapposite; the only questions raised in that case related to (1) ERISA preemption of state law claims, (2) standing to sue, and (3) the accuracy of professional advice given by legal counsel. No issue was raised or decided regarding the availability of the underlying claim, and in any event, there was no problem with allocation of liability and apportionment of a lump sum settlement amount. The settling defendant, who was the plaintiff in Harmon City, claimed that the third party was solely liable for the entire settlement amount.
Reference
- Full Case Name
- ZIONS FIRST NATIONAL BANK, N.A., and v. FOX & COMPANY, a general partnership, Charles H. Foote, and John Does 1-100, and
- Cited By
- 1 case
- Status
- Published