{"id":226,"date":"2013-06-04T04:31:38","date_gmt":"2013-06-04T04:31:38","guid":{"rendered":"http:\/\/www.joneslemongraham.com\/blog\/?p=226"},"modified":"2021-12-21T20:05:41","modified_gmt":"2021-12-21T20:05:41","slug":"judgments-against-fraudster-and-his-company-uninsurable-under-minnesota-law-and-do-policys-contract-exclusion-was-inapplicable","status":"publish","type":"post","link":"https:\/\/www.joneslemongraham.com\/blog\/judgments-against-fraudster-and-his-company-uninsurable-under-minnesota-law-and-do-policys-contract-exclusion-was-inapplicable\/","title":{"rendered":"Judgments against fraudster and his company uninsurable under Minnesota law, and D&#038;O policy\u2019s contract exclusion was inapplicable"},"content":{"rendered":"<p>by <a href=\"http:\/\/www.joneslemongraham.com\/attorneys.html?Attorney=Graham\">Chris Graham<\/a> and <a href=\"http:\/\/www.joneslemongraham.com\/attorneys.html?Attorney=Kelly\">Joseph Kelly<\/a><\/p>\n<p><a href=\"http:\/\/scholar.google.com\/scholar_case?case=2946290548304315786&amp;hl=en&amp;lr=lang_en&amp;as_sdt=2,14&amp;as_vis=1&amp;oi=scholaralrt\">Zayed v. Arch Ins. Co., Case No. 11-CV-1319 (PJS\/TNL) (D. Minn. March 20, 2013)<\/a><\/p>\n<p>Right before being shut down by the government for ponzi schemes, Trevor Cook sued Edward Baker and several Baker-affiliated companies, including Mesa Holdings, Inc. for fraud.  Cook\u2019s court-appointed receiver pursued the suit against Baker and Mesa.  D&amp;O insurer Arch refused to defend or indemnify Baker or Mesa for that suit.  The case resulted in a Miller-Shugart settlement under which $1 million and $500,000 judgments were entered against Baker and Mesa, respectively, and Baker and Mesa assigned any claims against Arch to Receiver.  Receiver sued Arch for the $1.5 million in judgments and about $70,000 in attorneys\u2019 fees incurred by Baker and Mesa in defending Receiver\u2019s suit.<\/p>\n<p>Court granted Arch\u2019s motion for summary judgment that Arch had no duty to indemnify Baker or Mesa because the amounts sought were \u201cuninsurable\u201d as a matter of law.  The Policy defines \u201cLoss\u201d as \u201cthe amount the Insureds are legally obligated to pay resulting from a Claim\u201d; but that definition also excludes \u201cmatters that are uninsurable under the law pursuant to which this Policy shall be construed.\u201d  When deciding whether a Minnesota claim is insurable, courts first look to the substance of the claim rather than labels; and then look to moral hazard and whether if a particular type of wrongdoing is insured, people will engage in more of that wrongdoing.  Court found this suit uninsurable because Baker and Mesa\u2019s conduct was fraudulent and insuring such conduct would lead to more fraud.<\/p>\n<p>Arch unsuccessfully argued that the contractual liability exclusion excluded coverage.  The policy excluded coverage for \u201cLoss for any claim . . . arising from, based upon, or attributable to any liability under any contract or agreement, provided that this exclusion shall not apply to the extent that liability would have been incurred in the absence of such contract or agreement.\u201d  Arch argued that \u201cbut for\u201d the contracts between Cook and Mesa, Mesa (and Baker) wouldn\u2019t be liable for fraud.  Court found that the Policy doesn\u2019t exclude coverage for claims that wouldn\u2019t exist \u201cbut for\u201d a contract; rather, the Policy excludes coverage for claims that wouldn\u2019t exist but for contractual liability (breach of contract).<\/p>\n<!-- AddThis Advanced Settings generic via filter on the_content --><!-- AddThis Share Buttons generic via filter on the_content -->","protected":false},"excerpt":{"rendered":"<p>by Chris Graham and Joseph Kelly Zayed v. Arch Ins. Co., Case No. 11-CV-1319 (PJS\/TNL) (D. Minn. March 20, 2013) Right before being shut down by the government for ponzi schemes, Trevor Cook sued Edward Baker and several Baker-affiliated companies, including Mesa Holdings, Inc. for fraud. Cook\u2019s court-appointed receiver pursued the suit against Baker and [&hellip;]<!-- AddThis Advanced Settings generic via filter on get_the_excerpt --><!-- AddThis Share Buttons generic via filter on get_the_excerpt --><\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[3],"tags":[],"_links":{"self":[{"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/posts\/226"}],"collection":[{"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/comments?post=226"}],"version-history":[{"count":2,"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/posts\/226\/revisions"}],"predecessor-version":[{"id":228,"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/posts\/226\/revisions\/228"}],"wp:attachment":[{"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/media?parent=226"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/categories?post=226"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/tags?post=226"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}