First Trinity Capital Corp. v. Catlin Specialty Ins., Civil Action No. 3:13CV9TSL–JMR.

990 F.Supp.2d 642

FIRST TRINITY CAPITAL CORPORATION, Plaintiff

v.CATLIN SPECIALTY INSURANCE and Crump Insurance Services, Inc., Defendants.

Civil Action No. 3:13CV9TSL–JMR.

United States District Court,

S.D. Mississippi,

Jackson Division.

Dec. 2, 2013.

John Graham Holaday, Holaday Law Firm, PLLC, Flowood, MS, William C. Walter, Grand Bank for Savings, FSB, Hattiesbrug, MS, for Plaintiff.

Charles Greg Copeland, Timothy J. Sterling, Copeland, Cook, Taylor & Bush, PA, Ridgeland, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of defendant Crump Insurance Services, Inc. (Crump) for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff First Trinity Capital Corporation (First Trinity) has responded to the motion and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that the motion is well taken and should be granted. ¹

Plaintiff First Trinity is engaged in the business of financing insurance premiums. In a premium finance arrangement, the premium finance company advances an amount to an insurer or insurance agent or broker in payment of premiums on an insurance contract which the insured under such policy must repay in regular monthly installments. SeeMiss.Code Ann. § 81–21–1 (defining premium finance agreement as “an agreement by which an insured or prospective insured promises to pay to a premium finance company the amount advanced or to be advanced to an insurer or to an insurance agent or broker in payment of premiums of an insurance contract together with interest or discount and a service charge....”). In First Trinity's standard finance agreement, the insured grants First Trinity a security interest in any unearned premiums and further grants First Trinity the power to cancel the policy if the insured defaults on its monthly payments. Thus, in the event an insured defaults on its repayment obligation, First Trinity may cancel the policy and collect the unearned premiums.

This case involves a premium finance agreement alleged to have been entered between First Trinity and B & W Auto Sales (B & W) to finance B & W's premium for a garage policy allegedly obtained by B & W from Catlin Specialty Insurance (Catlin), through Catlin's alleged general agent Crump, with effective dates of March 19, 2009 to March 19, 2010. First Trinity alleges that it provided premium financing for this policy by payment of $17,850 to Central Mississippi Insurance (CMI), which acted as the authorized agent for Catlin and Crump. First Trinity asserts that under the terms of the premium finance agreement executed by B & W, B & W agreed to repay the monies advanced, with interest and finance charges, in amortized monthly installments; assigned to First Trinity all unearned premiums as collateral for the loan to B & W; and gave First Trinity power of attorney to cancel the policy in the event of a default by B & W.

The complaint alleges that B & W defaulted on its repayment obligations under the premium finance agreement, whereupon First Trinity exercised its right to cancel the policy by sending a Notice of Cancellation to B & W, and to Catlin and Crump, directing that the policy be cancelled effective August 7, 2009. First Trinity alleges that upon cancellation, Catlin and Crump were obligated by law to return unearned premiums totaling $13,077.59 and yet they have failed and refused to refund the unearned premium to First Trinity.

On the basis of these allegations, First Trinity brought this action purporting to assert causes of action against Catlin and Crump for breach of statutory law and negligence per se (Count Oneo); breach of contract (Count Two); negligence (Count Three); fraud (Count Four); constructive trust (Count Five); actual and apparent authority (Count Six); ratification and estoppel (Count Seven); and punitive damages (Count Eight).² It has since voluntarily dismissed Catlin, leaving Crump as the only defendant. Crump has now moved for summary judgment as to each of plaintiff's putative causes of action.

In its motion, Crump explains what plaintiff's complaint does not: that Jan Gunn, who owned and operated CMI, was engaged in a scheme to defraud First Trinity, and that in this, and numerous other transactions involving at least eight other putative insurers and eight alleged general agents, premium finance monies forwarded to CMI/Gunn by First Trinity were not paid over to the putative insurers but rather were misappropriated by Gunn. Gunn has acknowledged that she misappropriated $1,293,450 from First Trinity through “fraudulent loans and financial transactions.” According to Crump, the $13,077.59 in damages sought by First Trinity in this litigation relates to a “fraudulent premium financing arrangement for a purported insured, B & W, for a fictitious policy allegedly (but not actually) issued by the named co-defendant/insurer, Catlin, allegedly through this defendant/ general agent, Crump.”

Crump argues that plaintiff's claims for breach of statutory law, negligence per se and breach of contract must be dismissed because plaintiff has not and cannot establish the existence of either the alleged Catlin insurance policy and/or the purported premium finance agreement. It argues that the remaining claims must be dismissed for lack of proof that CMI/Gunn was Crump's agent.

First Trinity alleges in support of its claim for breach of statutory law and negligence per se that it acquired, held and perfected a security interest in all unearned premiums in connection with the B & W policy when it funded the premiums for the policy, and that upon its cancellation of the policy, Crump violated its statutory duty to refund all unearned premiums. Although First Trinity has not identified the statute upon which these claims are based, it would appear they are premised on Mississippi Code Annotated § 81–21–21, which states:

Whenever a financed insurance contract is cancelled, the insurer shall return to the premium finance company as soon as reasonably possible whatever gross unearned premiums are due under the insurance contract, and also shall furnish to the premium finance company a report setting forth an itemization of the unearned premiums under the policy that includes a detailed mathematical summary of the computation of the return premium.

Miss.Code Ann. § 81–21–21. In its motion, Crump argues that First Trinity's claims for breach of statutory law and negligence per se must be dismissed in the absence of evidence that an insurance contract actually existed; and it maintains that First Trinity has no such evidence.

Indeed, in the absence of an insurance contract, there could be no unearned premiums; and in the absence of an insurance contract, there can be no violation of § 81–21–21, which by its terms applies only “[w]henever a financed insurance contract is cancelled.” See Insurasource, Inc. v. Phoenix Ins. Co., 912 F.Supp.2d 433, 439–440 (S.D.Miss.2012) (nonexistence of policy precluded finding that premium finance company was entitled to any unearned premiums or interest under New Jersey statute providing for return of unearned premiums “[w]henever an insurance policy or contract is canceled”). Plaintiff argues in response to the motion that it has presented sufficient evidence of the B & W insurance policy to create a genuine issue of material fact as to its existence. However, the court is not persuaded.

In support of its contention that a jury issue is presented as to whether a policy was actually issued, First Trinity relies on evidence which it contends establishes the following facts: that B & W was a legitimate trucking company with which CMI/Gunn had done business for years; that Gunn signed the Agent Certification in the premium finance agreement certifying “that all policies listed above have been issued and delivered ...”; that after making the decision to finance the policy, First Trinity sent Crump a Notice of Premium Finance and yet Crump never contacted First Trinity to inform it that Crump had not issued the policy; and that First Trinity would not have financed the policy without first communicating with Crump and confirming the information provided by CMI/Gunn regarding the existence and issuance of the policy.

None of this evidence cited by First Trinity, either alone or in combination, tends to establish that a policy was in fact issued. The fact that B & W was a legitimate company certainly does not. The fact that Gunn certified that a policy was issued is obviously insufficient to prove that a policy was issued. Moreover, even assuming that First Trinity notified Crump of the premium finance agreement for the purported B & W policy, Crump's failure to inform First Trinity that no such policy existed does not establish that a policy was issued. The only other evidence adduced by First Trinity is an affidavit from Clarence Zahn, who worked for First Trinity, in which he states that it was First Trinity's regular practice to communicate with the general agent identified in the premium finance agreement to verify the information provided by CMI/Gunn in deciding whether to finance the subject policy, and that at some unspecified time, he had a phone conversation with a representative of Crump who provided him with a policy number for the B & W policy, which he handwrote on the Notice of Cancellation.³ However, as Crump notes, even assuming that an unidentified Crump representative provided information to Zahn or First Trinity, that does not prove that a policy, in fact, existed. There is no evidence from Catlin, B & W or Crump confirming the existence of a policy. First Trinity has produced no policy, no application for a policy and no evidence of underwriting for a policy. In short, there is no proof that a policy was issued by Catlin to B & W. The court thus concludes that Crump is entitled to summary...