Rainforest Chocolate, LLC v. Sentinel Insurance Company, Ltd.
Rainforest Chocolate, LLC v. Sentinel Insurance Company, Ltd.
Opinion
¶ 1. In this insurance dispute, appellant, Rainforest Chocolate, LLC (Rainforest), appeals the summary judgment motion granted in favor of appellee, Sentinel Insurance Company, Ltd. (Sentinel). Rainforest argues that the trial court erred in its interpretation of the insurance policy and its conclusion that Rainforest's loss was not covered. We reverse.
¶ 2. The facts are undisputed. Rainforest was insured under a business-owner policy offered by Sentinel. In May 2016, Rainforest's employee received an email purporting to be from his manager. The email directed the employee to transfer $19,875 to a specified outside bank account through an electronic-funds transfer. Unbeknownst to the employee, an unknown individual had gained control of the manager's email account and sent the email. The employee electronically transferred the money. Shortly thereafter when Rainforest learned that the manager had not sent the email, it contacted its bank, which froze its account and limited the loss to $10,261.36.
¶ 3. Rainforest reported the loss to Sentinel. In a series of letters exchanged concerning coverage for the loss, Rainforest claimed the loss should be covered under provisions of the policy covering losses due to Forgery, for Forged or Altered Instruments, and for losses resulting from Computer Fraud. Sentinel denied coverage. In a continuing attempt to obtain coverage for the loss, Rainforest also claimed coverage under a provision of the policy for the loss of Money or Securities by theft. Sentinel again denied coverage, primarily relying on an exclusion for physical loss or physical damage caused by or resulting from False Pretense that concerned "voluntary parting" of the property-the False Pretense Exclusion.
¶ 4. After cross-motions for summary judgment, based on a statement of agreed facts, the trial court denied Rainforest's motion, granted Sentinel's motion, and entered judgment in favor of Sentinel. In its conclusion, the court stated:
The complicated nature of this policy, with its layers of coverages and exclusions, is almost impossible to follow without a compass and a guide. It took the court many hours of reading and rereading the policy and the briefs to reach a clear understanding of how the various provisions fit together. How any insured, however sophisticated, is supposed to determine that it is getting what it paid for with a policy like this is a mystery to the court. Nonetheless, the court concludes that the terms of the policy, while confusing, are not ambiguous and must be enforced as written.
The court held that Sentinel was correct in denying coverage under the False Pretense Exclusion. Rainforest timely appealed.
¶ 5. "This Court reviews summary judgment rulings de novo, applying the same standard as the trial court."
Jadallah v. Town of Fairfax
,
¶ 6. When interpreting an insurance policy, this Court follows well-established principles-our "review is nondeferential and plenary."
Shriner v. Amica Mut. Ins. Co.
,
¶ 7. Vermont law "requires that policy language be accorded its plain, ordinary meaning consistent with the reasonable expectation of the insured, and that terms that are ambiguous or unclear be construed broadly in favor of coverage."
Towns v. N. Sec. Ins. Co.
,
¶ 8. With these interpretation principles in mind, we turn to the insurance policy at hand. As the trial court noted, there are several subsections of the policy at the center of our analysis. First, the Special Property Coverage Form (SPC Form) outlines the general "rights, duties, and what is and is not covered" and the additional coverage areas in Section A, and then defines several terms in Section G.
A. COVERAGE
We will pay for direct physical loss of or physical damage to Covered Property at the premises described in the Declarations (also called "scheduled premises" in this policy) caused by or resulting from a Covered Cause of Loss.
....
2. Property Not Covered
Covered Property does not include:
....
c. "Money," bullion, numismatic and philatelic property and bank notes or "securities" except as provided in any Additional Coverages or Optional Coverages.
....
5. Additional Coverages
....
f. Forgery
(1) We will pay for loss resulting directly from forgery or alteration of any check, draft, promissory note, or similar written promises, orders or directions to pay a sum certain in "money" that you or your agent has issued, or that was issued by someone who impersonates you or your agent.
....
i. Money and Securities
(1) We will pay for loss of "money" and "securities" used in your business while at a bank or savings institution, within your living quarters or the living quarters of your partners or any employee having use and custody of the property, at the "scheduled premises," or in transit between any of these places, resulting directly from:
(a) "Theft"
....
G. PROPERTY DEFINITIONS
....
10. "Money" means:
a. Currency, coins and bank notes whether or not in current use
....
22. "Theft" means the act of stealing.
¶ 9. The policy also contains several exclusions, outlined in Section B of the policy.
B. EXCLUSIONS
....
2. We will not pay for physical loss or physical damage caused by or resulting from:
....
f. False Pretense: Voluntarily parting with any property by you or anyone else to whom you have entrusted the property if induced to do so by any fraudulent scheme, trick, device or false pretense.
¶ 10. Two endorsements supplement the policy and provide coverage in several areas, including additional forgery coverage and coverage for computer fraud.
A. The following changes apply ... to the Special Property Coverage Form, Additional Coverages:
....
1. Covered Property [under forged or altered instrument coverage]
....
a. Checks, drafts, promissory notes, or similar written promises, orders or directions to pay a sum certain in "money" that are:
(1) Made or drawn by or drawn upon by you;
(2) Made or drawn by one acting as your agent;
or that are purported to have been so made or drawn
....
4. Computer Fraud
The following Additional Coverage is added: We will pay up to $10,000 in any one occurrence for physical loss of or physical damage to "money," "securities," and other property having intrinsic value resulting directly from computer fraud. Computer fraud means any act of stealing property following and directly related to the use of any computer to fraudulently cause a transfer of that property from inside your premises or from a banking institution or similar safe depository, to a person (other than a "messenger") outside those premises or to a place outside those premises.
¶ 11. The crux of this case is whether the False Pretense Exclusion bars coverage for the loss experienced by Rainforest. Rainforest argues that the False Pretense Exclusion does not apply because it only excludes "physical loss or physical damages" and the loss here was not a physical loss.
¶ 12. Recently, the U.S. District Court for the District of Montana interpreted this exact provision in the context of a procedural history, fact pattern, and insurance policy that is virtually the same as the instant case. See
Ad Advert. Design, Inc. v. Sentinel Ins. Co.
,
¶ 13. In Ad Design , an employee received several emails from a supervisor's email account requesting that specific sums be transferred to an outside bank account. Believing the emails were legitimate, the employee wired money from the business's (Ad Design's) account into the specified accounts only to find out, after the transfers were complete, that the emails were fraudulent. Ad Design filed a claim with its insurer, Sentinel, seeking coverage for the loss, but Sentinel denied the claim, explaining that the policy excluded coverage under the False Pretense Exclusion. The only apparent differences between the Ad Design facts and the facts at issue here are: (1) Ad Design made four distinct transfers for a total of $115,595, where Rainforest only made one transfer of $19,875; and (2) Ad Design was not able to limit its loss by freezing its account and thus lost the entirety of the transferred amount, where Rainforest's bank was able to successfully freeze the transfer and limit its loss to $10,261.
¶ 14. The relevant provisions of the insurance policies in
Ad Design
and here are identical. The District Court of Montana outlined the same provisions that are at issue here: the SPC Form generally explaining the policy's coverage; additional coverage forms extending coverage for Forgery, Money and Securities, and Computer Fraud; and the False Pretense Exclusion. The court focused on the False Pretense Exclusion, identifying it as the critical issue in the case.
Id.
at 1180-81,
¶ 15. The District Court of Montana analyzed each of these arguments, starting with Sentinel's. It cited several cases that supported the interpretation that "intangible funds [are] interchangeable with and represent[ ] what is tangible, i.e. money."
¶ 16. The District Court of Montana then directed its analysis to Ad Design's argument. It agreed with Ad Design that the policy seemed to "make[ ] a distinction between 'loss or damage' and 'physical loss or physical damage.' "
¶ 17. It distinguished three cases with similar fact patterns-business loses money after employee receives email from account purporting to be from supervisor and transfers money as directed-to which Sentinel pointed for support that the exclusion was unambiguous. The District Court of Montana explained that "none of those cases involved an exclusion which required 'physical loss'-they all had exclusions which applied simply to 'loss or damage.' "
Id.
at 1181,
¶ 18. The District Court of Montana then noted that many courts have found that physical loss " 'means that the Covered Property must be tangible; "physical loss cannot occur in the intangible." ' "
Ad Design
,
¶ 19. The District Court of Montana concluded that "[i]n light of this authority and the Policy language, it would [also] be reasonable to interpret the Policy to find Ad Design did not suffer a 'physical loss.' "
Ad Design
,
¶ 20. Here, the trial court conceded that other courts have held transfers of funds are not "physical" because they are the losses of funds on deposit in a bank, rather than losses of cash, such as paper money or coins. But the trial court explained that it was not persuaded by this rationale because funds held by a bank fell within the policy's definition of "money," which is defined as "[c]urrency, coins and bank notes
whether or not in current use
." (Emphasis added.) This is true. See also
Town of Ira v. Vt. League of Cities & Towns
,
¶ 21. But just because funds, whether or not in current use, fall under the policy's definition of "money" does not then lend itself to the automatic conclusion that "money" can only be subject to "physical loss." We find support for this conclusion by comparing the Forgery, Money and Securities, and Computer Fraud provisions. The Forgery provision states that Sentinel "will pay for loss resulting directly from forgery ... in 'money' " and the Money and Securities provision states that Sentinel "will pay for loss of 'money,' " while the Computer Fraud provision states that Sentinel will pay "for physical loss or physical damage to 'money.' " (Emphases added.) This differing use of "physical loss" and simply "loss" leads this Court to conclude that it cannot be said that all "money" is subject solely to physical loss simply because funds, whether or not in current use, qualify as "money" under the policy.
¶ 22. If Rainforest or another insured business sought to clarify the extent of its coverage, it would likely turn toward the policy language itself and perhaps existing case law interpreting similar policies. However, this search would not have produced a clear, unambiguous answer for a reasonably prudent person. See
State Farm Mut. Auto. Ins. Co. v. Colby
,
¶ 23. And further, if Rainforest or another insured business looked to caselaw, they would have been met with a similarly opaque answer because for every court that has analyzed a similar issue, there is a different conclusion. As shown by the District of Montana in
Ad Design
, there is case law that supports both Sentinel's and Rainforest's interpretations. Compare
In re Oakley
,
¶ 24. So, while this Court "will not deprive the insurer of unambiguous terms placed in the contract for its benefit," that is not the case here.
Shriner
,
¶ 25. The question remains whether the loss is covered by any of the provisions, which Rainforest claims provide coverage: Forgery, Money and Securities, and Computer Fraud. We can quickly dismiss the Computer Fraud provision because it only provides coverage "for physical loss of or physical damage to 'money' ... resulting directly from computer fraud," and because we concluded that Rainforest's loss was not physical, it is not covered under this provision. However, we remand to the trial court to determine in the first instance whether the remaining provisions provide coverage for Rainforest's loss.
Reversed and remanded .
Subsection three of the exclusions is not at issue in this case, but exemplifies the differing uses of "physical loss and physical damage" and "loss and damage" throughout the policy. It reads: "We will not pay for loss or damage caused by or resulting from any of the following. But if physical loss or physical damage by a Covered Cause of Loss results, we will pay for that resulting physical loss or physical damage ." (Emphases added.)
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