Kansas Ins. Guaranty Assoc. v. FDIC

2015 WL 4647980 (10th Cir. Aug. 6, 2015) (Case Nos. 14-3063, 14-3064)
The Tenth Circuit affirmed the district court's summary judgment ruling in favor of the plaintiff, BancInsure. Applying Kansas law, the Court held that the "insured v. insured" exclusion in the policy, which (among other things) explicitly barred coverage for claims by a "receiver" of Columbian, barred coverage of the FDIC-R's claims. The defendants' arguments concerning inconsistencies with other terms of the policy, and extrinsic evidence of BancInsure's internal and external prior statements -- including statements made in prior litigation suggesting coverage of the FDIC-R's claims -- could not overcome the express exclusionary language of the policy. Likewise, the Court affirmed the district court's refusal to apply the doctrine of judicial estoppel to BancInsure's statements in prior litigation because the question of coverage is a question of law and not fact, and under prior Tenth Circuit precedent, the doctrine applies only to questions of fact.
Procedural context:
Appeal from summary judgment rulings by the Kansas District Court in favor of Plaintiff BancInsure, Inc. and against the FDIC, as receiver of Columbian Bank & Trust, and three ex-directors of Columbian.
BancInsure, Inc. (BancInsure) brought this action, originally in state court (removed to federal court), seeking a declaratory judgment that it owed no duty of coverage under a directors and officers (D&O) insurance policy (the policy) issued to Columbian Bank & Trust (Columbian), and its parent company and officers and directors, for claims asserted by the FDIC, as receiver of Columbian (FDIC-R), against former bank directors for negligence, gross negligence, and breach of fiduciary duty. On August 22, 2008, the Kansas State Bank Commissioner had declared Columbian insolvent, the FDIC was appointed as receiver, and the FDIC-R succeeded by operation of law to all rights, titles, powers, and privileges of Columbian, and of any stockholder, member account holder, depositor, officer, or director of Columbian, giving it the right to assert the claims at issue. All parties moved from summary judgment. The district court entered summary judgment in favor of BancInsure, and the FDIC-R and director-defendants appealed.
Kelly, Holmes, and McHugh, Circuit Judges.

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