WBC commercial paper sold. (Meyer Aff. Ex. M; JPTO P 20.) In addition, NBW regularly provided to Colson copies of bank statements for the 12-7 Account which reflected the purchases of WBC commercial paper. (Meyer Aff. Ex. N; JPTO P 22.)
From March 15, 1990 through May 4, 1990, NBW invested on behalf of Colson a daily average of approximately $ 9.7 million in WBC commercial paper. (JPTO P 23.) During that time, WBC was reporting losses and its ratings were declining. (Id. PP 24-27, 29, 34.) On May 4, 1990, NBW used $ 9.1 million from the 12-7 Account to purchase, on behalf of Colson, WBC commercial paper. Id. P 35.) On May 7, 1990, WBC defaulted on its commercial paper obligations. (Id. P 38.) Thereafter, Colson procured a $ 9.1 million loan to restore the amount in the 12-7 Account that had been used to purchase WBC commercial paper. (Id. P 42.) On August 1, 1990, WBC filed for bankruptcy, and on August 10, 1990, NBW was placed in FDIC receivership. (Id. PP 44-45.)
Colson later filed a claim of loss with INA, and now sues to recover $ 4,327,771.87 under the Policy's Theft, Disappearance and Destruction Coverage Form. Although Colson alleges that its total loss was $ 11,786,762.68, it received $ 7,458,990.81 in settlement with the FDIC, and therefore seeks to recover the balance of $ 4,327,771.87 from INA. (Meyer Aff. Ex. Z.) INA contends that Colson is not covered for that loss pursuant to two exclusions in the Policy. In addition, INA urges that Colson's loss did not result from a theft, and that the loss did not involve "money or securities," as required under the Policy. Finally, INA argues that Colson failed to provide adequate notice of the loss in accordance with the Policy, and that requiring INA to cover Colson's loss would be against public policy.
Summary judgment is authorized when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In examining the record, the court "must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party." Gibson v. American Broadcasting Cos., Inc., 892 F.2d 1128, 1132 (2d Cir. 1989); see Celotex, 477 U.S. at 330 n.2. The judge's role in summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
INA contends that even if Colson's loss could otherwise be covered by the Policy as a theft of money or securities, Colson cannot recover because the Policy expressly excludes losses resulting from any dishonest act committed by any of Colson's "authorized representatives." Paragraph D(1)(b) of the Theft, Disappearance and Destruction Coverage Form provides that:
We will not pay for loss as specified below: ... Acts of Employees, Directors, Trustees or Representatives: Loss resulting from any dishonest or criminal act committed by any of your "employees," directors, trustees or authorized representatives: (1) Acting alone or in collusion with other persons; or (2) While performing services for you or otherwise.