Federal Insurance v. Walker

Order, Supreme Court, New York County, entered June 19, 1978, (1) granting the motion and cross motion by plaintiff-respondent and third-party defendants-respondents for reargument, respectively, (2) vacating the 871 earlier order filed January 17, 1978, (3) directing partial summary judgment on the first and second causes of action for plaintiff-respondent in the sum of $52,800 with the remainder of plaintiffs claim to be assessed, (4) granting partial summary judgment to the third-party defendants-respondents dismissing the third-party complaint, (5) granting summary judgment on the counterclaim of third-party defendants in the sum of $3,796.20, with interest, for dividends wrongfully retained by deceased, Helen Earle Walker, and (6) directing that the claim of third-party defendants for attorneys’ fees and expenses be fixed at an assessment, modified, on the law, to the extent of (1) denying the motion by the third-party defendants for summary judgment dismissing the third-party complaint, without costs or disbursements, and (2) granting summary judgment in full in the sum of $114,842.25 to the plaintiff on the first and second causes of action, and otherwise affirmed, with costs and disbursements only to the plaintiff in its action against the defendants. In February, 1970, decedent, Mrs. Walker, bought 1,140 shares of Union Camp Corporation common stock. In March, 1970, she indorsed, negotiated and transferred the certificates representing these shares. Because the transaction was not duly recorded by the corporation or its transfer agent, she continued to receive dividends thereafter. Decedent’s son, Alexander Walker, Jr., ultimately administrator of his late mother’s estate, was aware that she was receiving dividends, but could not locate the certificates. He therefore advised her to notify the transfer agent, third-party defendant Morgan Guaranty Trust Company, of the presumed loss. Thereafter, two indemnity agreements were executed. First, to induce the issuance of duplicate shares, decedent executed an indemnification agreement and affidavit of loss with plaintiff-respondent, Federal Insurance Company, under its blanket bond plan with Union Camp Corporation, wherein she agreed to indemnity Union Camp Morgan Guaranty as its transfer agent, and Federal Insurance as surety, for "any and all liabilities, loss, damage or expense in connection with, or arising out of their compliance with the request of deponent”. She also attested in these instruments to a diligent search for the original certificates and to no recollection of the fate of the certificates. Furthermore, she specifically stated that she had not sold, assigned, nor transferred the originals or any interest therein. These statements amounted to misrepresentation of the facts upon which the parties relied. Decedent’s son also executed a personal guarantee of indemnity agreeing to indemnify only Federal Insurance for any and all loss, damage or expense it might incur. This was done as an additional inducement to Federal to execute the bond under the blanket bond plan. Federal issued its bond to Morgan Guaranty and Union Camp agreeing to indemnify them for any loss or expense sustained as a result of their issuing replacement stock to Mrs. Walker. The bond provided that if the original certificates were recovered, the surety, Federal, would, on demand, deliver for cancellation either the original or duplicate certificates or pay their full market value to the assured. Following issuance of the surety bond, replacement certificates were issued to Mrs. Walker. Shortly thereafter, in August, 1973, she sold these replacements for $52,800. In September, 1975, the transfer agent notified the surety that a recent audit disclosed that the Walker stock certificates claimed to have been lost had actually been canceled in March, 1970, but that the transaction had not been recorded. To correct the overissuance of stock certificates, the transfer agent, under the provisions of the blanket bond, then made a formal demand for 1,140 shares of Union Camp common stock in negotiable form for cancellation, and for a sum of $8,185.20 to cover overpayment of dividends for the period involved. 872 The surety, in turn, made demand upon Mrs. Walker and her son for the shares and dividend overpayments. In October, 1975, counsel for the estate and Mr. Walker requested Federal to take no action until counsel assessed the merits of the claim. Negotiations then ensued between counsel for the estate and Mr. Walker, and counsel for the surety and the transfer agent. In February, 1976, there was proposed to the transfer agent as settlement for the claim, the $52,800 decedent received from the sale of the replacement stock in 1973 and an amount equal to the dividends she received from June, 1970, after she sold the original stock, until the 1973 sale, approximately $3,800. The estate had disclaimed any other liability based on the failure properly to record the 1970 sale by decedent. This offer was not accepted. Union Camp was compelled to purchase the stock in the open market. Union Camp stock had split three for two in the interim between the surety’s demand in September, 1975, and the purchase date in August, 1976, and so purchase of the then current equivalent of the original 1,140 shares cost Union Camp $108,515.25, substantially more than it would have been in October, 1975. The surety reimbursed Union Camp under the bond for the $108,515.25 purchase price paid, and $6,327 representing the payment of dividends on the replacement certificates from the date of the surety’s assumption of liability to the date of cancellation of the replacement shares, for a total of $114,842.25. The surety then brought this action against Mr. Walker individually and in his capacity as administrator of his mother’s estate, to recover under the two indemnity agreements. A third-party action was brought by Mr. Walker in his dual capacity against the corporation and the transfer agent, alleging negligence in failing to cancel the certificates upon the 1970 sale by Mrs. Walker and in not properly reflecting such transfer on the books. Further, negligence was alleged in the failure to discover the original error through several audits, or to discover the overissuance upon the 1973 sale of the replacement stock until September, 1975. The third-party defendants Union Camp and Morgan Guaranty contend the indemnity agreements control. The surety under its bond plan was clearly obligated to pay the corporation and its transfer agent the full amount of the loss. The language of the bond required the surety to pay the full market value of the stock and covered situations where loss was caused by an indemnitee’s negligence. The surety properly sought recovery to the full extent of its payment under its indemnity agreements with Mr. Walker and decedent. The contractual obligation set forth in these agreements specified indemnification of the surety for "any and all liabilities * * * or expense” arising out of the stock reissuance. There is no basis for attributing any negligence of the corporation or the transfer agent to the surety. The motion by the plaintiff for summary judgment on the first and second causes of action was granted in part only, at Special Term, in the amount of $52,800, the figure that was received by decedent on the second sale in 1973, plus $3,796.20, the dividends for the period between the first and second sale. As to the surety, summary judgment should have been granted in full for the actual buy-in purchase price and the dividends involved. The third-party claim was dismissed by Special Term on the merits. It is important to note that the third-party claim of negligence is based on a different duty than that owed by decedent and Mr. Walker to the surety under their contractual arrangement. Third-party defendants rely on recent cases (Margolin v New York Life Ins. Co., 32 NY2d 149; Levine v Shell Oil Co., 28 NY2d 205; Kurek v Port Chester Housing Auth., 18 NY2d 450; Liff v Consolidated Edison Co., 23 NY2d 854, affg 29 AD2d 665) for the proposition that the all-inclusive language in the agreement of decedent to indemnify 873 the corporation and its transfer agent, extends to any loss occasioned by their negligence relating to the stock reissuance, although this was not specifically provided for in that agreement. However, in this case there were two separate and distinct instances of possible negligence, only one of which, it appears, may have been within contemplation of this indemnity agreement. One act of negligence is that of the corporation and its transfer agent in not recording the 1970 sale. The second was in failing to ascertain within a reasonable period of time thereafter that there had been a transfer, during which time the value of the stock appreciated. It is for the trier of fact initially to determine whether there was any negligence in not discovering the original mistake, and, if there was negligence, at what point the third-party defendants should have learned of the mistake. Thus, some of the monetary loss incurred may be found to be due to the negligence of the third-party defendants. Unlike the indemnification agreement executed by decedent, the agreement of decedent’s son extends only to the surety, not to the corporation and its transfer agent. Thus, there is no basis on which to preclude Mr. Walker, in his individual capacity, on his claim-over against third-party defendants for their negligence in failing to ascertain within a reasonable time that the original stock had been transferred. However, the scope of their duty to him needs to be explored. Concur—Kupferman, Lane, Lupiano and Lynch, JJ.