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National Union Fire Ins. Co. of Pittsburgh, PA v. Raczkowski

United States Court of Appeals, Eighth Circuit

August 13, 2014

National Union Fire Insurance Company of Pittsburgh, PA, Plaintiff - Appellant
v.
Yvonne Raczkowski, Defendant, Hometown Bank, N.A., Defendant - Appellee, XYZ Corporation, 1-5, Defendant
v.
Hometown Bank, N.A. Third Party, Plaintiff - Appellee, Mark Leon Henry; Leon Henry; Sheila Henry; Julie Balls; Steve Balls; Investment Centers of America, Inc.; Jack Howerton; Delbert Phipps; Wayne Roffman, Third Party Defendants

Submitted June 12, 2014.

Appeal from United States District Court for the Western District of Missouri - Joplin.

For National Union Fire Insurance Company of Pittsburgh, PA, Plaintiff - Appellant: Tyson H. Ketchum, Megan J. Ochs, Armstrong & Teasdale, Kansas City, MO.

For Hometown Bank, N.A., Defendant - Appellee: James L. Baker, Victor Felix Weber, Merrick & Baker, Kansas City, MO; James Kevin Checkett, Checkett & Pauly, Carthage, MO.

For Hometown Bank, N.A., Third Party Plaintiff - Appellee: James L. Baker, Victor Felix Weber, Merrick & Baker, Kansas City, MO; James Kevin Checkett, Checkett & Pauly, Carthage, MO.

For Julie Balls, Steve Balls, Investment Centers of America, Inc., Jack Howerton, Wayne Roffman, Third Party Defendant: Eric D. Martin, Bryan & Cave, Saint Louis, MO.

For Delbert Phipps, Third Party Defendant: Richard E. Davis, Whiteaker & Wilson, Springfield, MO; Eric D. Martin, Bryan & Cave, Saint Louis, MO.

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.

OPINION

Page 801

KELLY, Circuit Judge.

This case stems from fraud committed by an investment advisor who opened a doing-business-as (" d/b/a" ) bank account using the name of his employer when he did not have the employer's authority to do so. The investment advisor used the d/b/a bank account to steal money from his employer's customers. His employer settled with the defrauded customers, and the employer's insurance company paid the settlements. The insurance company then brought this suit against the bank, alleging that the bank acted negligently by failing to inquire into whether the former advisor had authority to open the d/b/a account. The district court[1] granted the bank's motion to dismiss, concluding that the bank owed no recognized duty to the employer. We affirm.

I.

In 1994, Mark Henry began working for Investment Centers of America, Inc. (" ICA" ), which provides investment and insurance products. ICA is insured by National Union Fire Insurance Company of Pittsburgh, PA (" National Union" ), the appellant. Henry worked as an investment advisor and agent for ICA in its Carthage, Missouri, branch office.

In November 2004, Henry opened a bank account at Hometown Bank, N.A. (" Hometown Bank" ), under the name " Mark L. Henry d/b/a Investment Centers of America." ...


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