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August 25, 2003


The opinion of the court was delivered by: Harold Baer, Jr., District Judge[fn1] [fn1] Gabe Miller, an intern in my Chambers during the summer of 2003 and a second-year law student at Columbia Law School, provided assistance in the research and drafting of this opinion.


John Rigas, Timothy Rigas, James Rigas, and Michael Rigas (the "Rigases") appeal, pursuant to 28 U.S.C. § 158(a)(1), from the Bankruptcy Court's order, In re Adelphia Communications Corp., 285 B.R. 580 (2002), staying civil litigation in regard to Directors' and Officers' ("D & O") liability insurance. Although the Bankruptcy Court granted in part the Rigases relief from the bankruptcy stay by permitting them to apply for up to $300,000 for their legal defense costs under the D & O insurance, the Bankruptcy Court determined that the D & O insurance policy is an asset of the debtor, thus litigation to cancel or rescind the D & O policy required relief from the stay, and such application was denied by the Bankruptcy Court. The Rigases seek payment or advancement of up to the $300,000 amount from the insurance companies regardless of the insurance companies' rescission and exclusion of the claims. For the following reasons, the Bankruptcy Court's order is vacated and remanded for further findings.


A majority of the background facts is set forth in In re Adelphia Communications Corp., 285 B.R. 580 (2002), and the Court assumes familiarity with them. Only a summary of the facts that are useful and relevant to deciding the appeal is reviewed here.

The appellees include Adelphia Communications Corporation ("ACC") and Adelphia Business Solutions, Inc ("ABIZ"), collectively ("Adelphia"), both of which are in chapter 11 reorganization. ACC was the parent company of ABIZ before it spun off ABIZ. Before the chapter 11 petitions, ACC had purchased a Directors' and Officers' insurance policy [ Page 2]

from Associated Electric & Gas Insurance Services, Ltd. ("AEGIS") that provided $25 million of insurance coverage. ACC also acquired excess D & O policies from Federal Insurance Company and Greenwich Insurance Company*fn2 for $15 million and $10 million, respectively. The D & O policies provide coverage for Adelphia and directors and officers for losses that the entity or the officers and directors may become obligated to pay on account of claims made for "wrong acts." Adelphia, 285 B.R. at 592. After the spin off, ABIZ agreed to pay premiums to the insurers so that ABIZ and its directors and officers would also have coverage under the D & O policies that ACC purchased.

The Rigases are now charged with multiple counts of corporate fraud in the management of Adelphia, and are defendants in numerous civil and criminal proceedings. The Rigases seek reimbursement of legal defense fees from the insurers for litigation arising out of their alleged fraudulent activities, but have been unable to seek such reimbursement because of the automatic bankruptcy stay. On September 13, 2002, the Rigases filed a motion with the Bankruptcy Court seeking relief from the automatic stay and to allow payment and/or advancement of defense costs under the D & O policies. Adelphia, 285 B.R. at 588. The Bankruptcy Court concluded that the proceeds were subject to a stay under 11 U.S.C. § 362(a)(3), id. at 590, 592, and held that the insurers and the Rigases would need to move for relief from the stay if either sought to litigate the validity of the D & O insurance policies*fn3 or the obligations thereunder. Id. at 590, 593. The Bankruptcy Court granted the Rigases partial relief from the stay, pursuant to 11 U.S.C. § 362(d)(1). In particular, the Bankruptcy Court modified the automatic stay to permit the Rigases to request, and allow the insurers to pay, if the insurers agreed, up to $300,000 per insured for defense costs. Id. at 600. The Bankruptcy Court, however, restricted all insurance-related litigation, including litigation to draw down from the policies if the insurers refused to voluntarily pay the Rigases claims, until after the conclusion of the criminal proceedings against the Rigases, which is scheduled to commence January 2004. The Rigases contend that the Bankruptcy Court erred in:

1. Finding that the $300,000 claimed by each of the Rigases under the D & O policy constitutes property of Adelphia Communications Corporation ("Adelphia") and Adelphia Business Solutions, Inc. ("ABIZ") (collectively the "debtors") estates; [ Page 3]
2. Staying all litigation relating to the D & O insurance policies,*fn4 pursuant to the automatic stay provision under 11 U.S.C. § 362(a)(3), including the litigation by the Rigases against the insurance companies to recover money under the D & O policies;
3. Refusing to lift the automatic stay under 11 U.S.C. § 362(d); and
4. Making certain statements in its Order that should have no binding effect on the parties to the D & O insurance policy.

A. Standards of Review

This Court reviews the Bankruptcy Court's findings of fact for clear error, and generally speaking, findings that involve questions of law or mixed questions of fact and law are reviewed de novo. In re United States Lines, Inc., 197 F.3d 631, 640-41 (2d Cir. 1999). Because the inquiry required to evaluate whether to lift a stay is "very fact specific and involve[s] the weighing of numerous factors peculiar to the particular case," In re Sonnax Indus., Inc., 907 F.2d 1280, 1288 (2d Cir. 1990), such decision by a bankruptcy court is committed to its sound discretion and is reviewable only for abuse-of-discretion. In re Mazzeo, 167 F.3d 139, 152 (2d Cir. 1999); see Stonington Partners, Inc. v. Lernout & Hauspie Speech Products N.V., 310 F.3d 118, 122 (3d Cir. 2002); Sunshine Development, Inc. v. F.D.I.C., 33 F.3d 106, 111 (1st Cir. 1994); In re Eagle-Picher Industries, Inc., 963 F.2d 855, 858 (6th Cir. 1992). [ Page 4]

B. Appeal from Stay of Litigation*fn5

It is well settled that insurance policies are covered by the automatic stay provision of the Bankruptcy Code, see MacArthur Co. v. Johns-Manville Corp., 837 F.2d 89 (2d Cir. 1988); see also Louisiana World Exposition, 832 F.2d at 1399 ("There are a great many bankruptcy cases holding that liability insurance policies that provide coverage for the bankrupt's liability belongs to the bankrupt's estate." (emphasis in original)). The Rigases do not dispute that the policies involved in this appeal are an asset of the debtors' estate, and are therefore subject to the automatic stay under 11 U.S.C. § 362(a)(3).

The Rigases first prong of attack on the Bankruptcy Court's order centers on whether the Bankruptcy Court correctly categorized the $300,000 of proceeds, that the Bankruptcy Court permitted them to claim under the policy, is an asset of the debtor, which remains subject to an automatic stay under 11 U.S.C. § 362(a)(3). Section 362(a)(3) automatically enjoins "all entities" from "any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate." Section 541 of the Bankruptcy Code defines "property" of a debtor's estate as "all legal and equitable interests of the debtor." While some courts have held that the proceeds of a D & O policy are property of the debtor's estate and subject to the automatic stay, see, e.g. In re Vitek, 51 F.3d 530 (5th Cir. 1995); In re Minoco of Group of Cos., Ltd., 799 F.2d 417 (9th Cir. 1986); In re Sacred Heart Hospital of Norristown, 182 B.R. 413 (Bankr. E.D. Pa. 1995); In re Circle K Corp., 121 B.R. 257 (Bankr. D. Ariz. 1990), others have held to the contrary, see, e.g., In re Louisiana World Exposition, 832 F.2d 1391 (5th Cir. 1987); In re Youngstown Osteopathic Hosp. Ass'n, 271 B.R. 544 (Bankr. N.D. Ohio 2002); In re CHS Electronics, Inc., 261 B.R. 538 (Bankr. S.D. Fla. 2001); In re Daisy Sys. Sec. Litig., 132 B.R. 752 (N.D. Cal. 1991); In re Zenith Labs., Inc., 104 B.R. 659 (D.N.J. 1989). Neither I, nor any of the parties have located any decision by the Second Circuit on this subject, and thus the issue appears to be one of first impression in this Circuit.

Here, as far as I can tell, Adelphia does not have a property interest in the proceeds of the insurance policies yet. Although the D & O policies ...

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