State ex rel. Healy v. Maryland Casualty Co.

THORNTON, J. In these consolidated cases plaintiff sought recovery against defendants as sureties for Pacific Securities Company on two blue sky bonds. The court, without a jury, concluded: "(1) Plaintiff has capacity and standing to bring this action. "(2) The complaint states facts sufficient to constitute a cause of action under the bond and an allegation of fraud is not necessary. "(3) Neither the two-year nor the three-year statute of limitations contended by defendant applies to this cause of action and the statute of limitations had not yet run on this claim when the action was filed. "(4) Defendant is liable for damages incurred due to violations of the Oregon Securities Law occurring during the period when the bond was in effect. "(5) Plaintiff has sustained its burden of proving its cause of action and is entitled to damages in the amount of * * * [$8,150 as to defendant United Pacific Insurance Company, $4,473.04 as to defendant Maryland Casualty Company], together with interest thereon at six percent per annum from September 25, 1972, until paid, for the use and benefit of all interested persons.” On appeal, defendants assign as error the first three conclusions, the failure to conclude that the two bonds constituted a single obligation with an aggregate liability limit of $10,000, the receipt of an exhibit into evidence without proper foundation and the award of attorney fees. The essential facts are these: In order to register as a broker-dealer, Pacific Securities Company filed with the Corporation Commissioner a surety bond running to the State of Oregon in the sum of $10,000, as required by ORS 59.175(5). The first such bond, with Maryland Casualty Company as surety, was posted December 13, 1967, and canceled May 22,1969, on which date a bond with United Pacific Insurance Company as surety was [738] posted, which remained in effect until its cancellation on October 31, 1969. On January 30, 1970, Pacific Securities Company was adjudicated bankrupt. On April 19, 1973, plaintiff in his official capacity as Corporation Commissioner brought suit against each surety for the use and benefit of all interested persons. The complaints alleged that Pacific Securities Company had, between December 13,1967, and December 12,1969, failed to account to persons interested for all money or property received and to deliver, after a reasonable time, to persons entitled thereto, securities held or to be delivered. The complaints did not allege fraud, and at trial plaintiff conceded that no fraud had been proved. The complaints sought judgment in the amount of $10,000 on each bond, with interest, and attorney fees. We will treat defendants’ assignments of error seriatim. (1) Defendants contend that the Corporation Commissioner does not have capacity to commence an action on a blue sky bond on his own initiative on behalf of unnamed persons damaged by a violation of the Oregon Securities Law. The contention assumes that the commissioner has no statutory authority to bring suit and that authority may not be implied. Even if we agreed that the authority of the Corporation Commissioner to sue on the bond may not be implied, any person having a right of action against a broker-dealer pursuant to ORS 59.115 has a right of action on the bond. ORS 59.115(6). The gravamen of this action is a violation of ORS 59.115(l)(a). The commissioner may sue directly against the broker-dealer for a violation of ORS 59.115 pursuant to ORS 59.255,1 [739] and may, therefore, bring an action on the bond.2 (2) Defendants argue that the complaint does not state a cause of action under the Oregon Securities Law because no fraud was alleged, citing State v. Francis, 152 Or 448, 54 P2d 297 (1936). Subsequent amendments to the Oregon Securities Law and the later case of Hartford Acc. and Ind. Co. v. Ankeny, 199 Or 310, 261 P2d 387 (1953), have in substance, overruled State v. Francis, supra. The alleged failure of Pacific Securities Company to account for money and to deliver securities constitutes grounds for revocation of its broker-dealer registration. ORS 59.205 provides: "Except as provided in ORS 59.215, the commissioner may by order deny, suspend or revoke registration of a person as a broker-dealer, salesman or investment adviser if he finds that the applicant or registrant: [740] "(7) Has failed to account to persons interested for all money or property received; "(8) Has not delivered after a reasonable time, to persons entitled thereto, securities held or to be delivered; * * * »3 ORS 59.115 provides: "(1) Any person who: "(a) Offers or sells a security in violation of the Oregon Securities Law or of any rule or order of the commissioner, or of any condition, limitation or restriction imposed upon a registration under the Oregon Securities Law * * * "(b) ***** is liable as provided in subsection (2) of this section to the person buying the security from him. A failure to account and deliver under ORS 59.205(7) and (8) is a violation of a "condition, limitation or restriction imposed upon a registration under the Oregon Securities Law,” prohibited by ORS 59.115(l)(a), and an allegation of the failure to account and deliver states a cause of action under that section. (3) Defendants argue that the three-year limitation in ORS 59.115(5) is applicable and bars this action because the bond was canceled on October 31, 1969, and the actions were filed on April 19,1973, more than three years after the statutory violations occurred. ORS 59.115(5) provides: "No action or suit may be commenced under this section more than three years after the sale.” [741] This provision is not controlling in an action on the bond. The term "this section” in subsection (5) refers to § 13 of the Oregon Securities Law. Oregon Laws 1967, ch 537, § 13. Section 13 of the Oregon Securities Law is now ORS 59.115. ORS 59.115(6) provides: "Any person having a right of action against a broker-dealer, or against a salesman acting within the course and scope or apparent course and scope of his authority, under this section shall have a right of action under the bond provided in ORS 59.175.” ORS 59.175 was § 18 of the Oregon Securities Law. ORS 59.175 does not contain a limitation comparable to the three-year limitation in ORS 59.115. An action on the bond under ORS 59.175 is subject to the general limitations of ORS ch 12 and is not subject to the three-year limitation restricted to actions under ORS 59.115. In Hartford Acc. and Ind. Co. v. Ankeny, supra, the Oregon Supreme Court held: "The claim that an action brought under the provisions of OCLA, § 80-119 is the exclusive remedy against the bondsman is without merit. * * *” 199 Or at 323. Section 80-119, OCLA, was, like ORS 59.115, the cutting edge of the Oregon Securities Law. None of the statutory modifications since Ankeny affect the principle that a suit on the bond is a supplemental remedy to the extent of the bond. See also, Comment, Express and Implied Civil Liability Provisions in State Blue Sky Laws, 17 W Res L Rev 1173, 1191 (1966); 3 Loss, Securities Regulation 1661 (2d ed 1961). (4) ORS 59.175(5) requires that a corporate surety bond, satisfactory to the commissioner and running to the State of Oregon in the sum of $10,000, be filed as a condition precedent to registration as a broker-dealer. Pacific Securities Company posted such a bond December 13,1967, with Maryland Casualty Company as surety. The Maryland Casualty bond was canceled May 22, 1969, and a bond containing identical lan [742] guage was posted on that date with United Pacific Insurance Company as surety. The second bond was canceled October 31, 1969. The trial court determined that defaults causing damages in excess of the $10,000 limit were attributable to the period during which the Pacific Insurance bond was in effect and assessed damages at the limit of the bond less a claim for $1,850 previously settled by United Pacific and its indemnitor. The trial court also held that defaults causing damages in the amount of $4,473.04 were attributable to the period covered by the Maryland Casualty bond. The trial court treated the bonds as separate contracts for which separate liabilities were assessed. Defendants argue that the substitution of one blue sky bond for another does not increase the total aggregate liability of the bonds beyond $10,000. Unlike most fidelity or statutory bonds construed in cases involving the issue of the cumulative liability of sureties for renewal or substitute bonds, the bonds in this case do not purport to limit the liability of the successive sureties. See, e.g., Bradley v. Fidelity & Cas. Co. of N.Y., 141 Pa Super 85, 14 A2d 894 (1940); Southern Surety Co. v. Equitable Surety Co., 84 Okla 23, 202 P 295 (1921); Annotation, Extent of liability on fidelity bond renewed from year to year, 7 ALR2d 946 (1949). The bonds in this case are closely analogous to fidelity bonds. The general rules of construction applied to fidelity bonds are applicable in construing broker-dealer bonds. Unless it appears that the parties intended otherwise, the renewal of a fidelity bond constitutes a separate and distinct contract so as to entitle recovery for the face amount of the bond for each policy period during which the defalcation occurred. 17 Couch on Insurance 2d, § 68:47 (1966). As no provision in the bond limits or aggregates liability under the bonds, [743] the trial court was correct in construing them as cumulative. See also, Giese v. Engelhardt, 175 NW2d 578 (ND 1970). (5) Defendants next object to the admission of certain ledger cards maintained by Pacific Securities into evidence on the issue of damages. We find no abuse of discretion by the trial court in admitting this evidence under ORS 41.690. Cascade Lbr. Terminal v. Cvitanovich, 215 Or 111, 332 P2d 1061 (1958). (6) Attorney fees were properly awarded. ORS 743.114. Affirmed. Footnotes [1] ORS 59.255 provides: "(1) Whenever it appears to the commissioner that a person has engaged or is about to engage in an act or practice constituting a violation of any provision of the Oregon Securities Law or any rule or order of the commissioner, the commissioner may bring suit in the name and on behalf of the State of Oregon in the circuit court of any county of this state to enjoin the acts or practices and to enforce [739] compliance with the Oregon Securities Law or such rule or order. Upon a proper showing, a permanent or temporary injunction, restraining order, or writ of mandamus, shall be granted. If the court finds that the defendant has violated any provision of the Oregon Securities Law or any such rule or order, the court may appoint a receiver, who may be the commissioner, for the defendant or the defendant’s assets. The court may not require the commissioner to post a bond. If the commissioner prevails, he shall be entitled to a reasonable attorney fee to be fixed by the court. "(2) The commissioner may include in any action authorized by subsection (1) of this section a claim for restitution or damages under ORS 59.115 or 59.127, on behalf of the persons injured by the act or practice constituting the subject matter of the action. The court shall have jurisdiction to award appropriate relief to such persons, if the court finds that enforcement of the rights of such persons by private civil action, whether by class action or otherwise, would be so burdensome or expensive as to be impractical.” [2] Defendants also argue that since there was no finding that the enforcement of the rights of persons injured by defendants’ acts would be so burdensome or expensive as to be impractical if individually pursued, as required by ORS 59.255(2), the commissioner cannot maintain this action on the bond. The identity and extent of damage to the injured persons in this case is established by the bankruptcy records. Assuming the finding may not be implied from the order in a suit directly against the principal, we find no basis for requiring an express finding of impracticality in a suit on the bond. [3] The Supreme Court in Hartford Acc. and Ind. Co. v. Ankeny, 199 Or 310, 261 P2d 387 (1953), held that these same grounds for revocation were failures to "strictly, honestly and faithfully comply with the provisions of the * * * Oregon Securities Act,” as required by the terms of the bond. 199 Or at 318-19, 321. The bond in this case, like the bond in Ankeny, states that the principal "shall strictly, honestly and faithfully comply with the provisions of the * * * Oregon Securities Law, and shall pay all damages suffered by any person by reason of the violation of any of the provisions of said law * * *.”