07 July 2015

Fraud Insurance: Vero v. Heartland Bank

Insurance cover for loss by employee dishonesty does not extend to staff exceeding their authority in attempts to make money for the boss.  Vero refused cover on a one million dollar claim where a Marac employee dishonestly exceeded his authority but had no intention of causing a loss.  He lacked sufficient expertise to oversee the business of a defaulting Marac client.
The Court of Appeal was told Marac Finance, now Heartland Bank, got its fingers burnt to the tune of $6.87 million financing Rapson Holdings importation of Daewoo and Ssangyong vehicles from South Korea.  After writing off $5.5 million, Marac put staffmember Mr Grant Atkinson in charge of plans to recover what it could of the outstanding debt.  In October 2003, Marac opened a replacement credit facility for Rapson to be overseen by Mr Atkinson.  The intent was to lend on confirmed orders from bona fide dealers, issuing letters of credit for each importation and collecting a margin on the sale in reduction of Rapson’s debt: so-called back-to-back deals.  It transpired that Mr Atkinson failed to follow the rules, financing some importations without first booking a sale to a dealer.  This left Marac exposed with unsold inventory.  Rapson had been insolvent for some time.  It was put into liquidation in 2010.  Marac claimed from Vero Insurance for employee dishonesty up to the policy limit of one million dollars.  The policy covers financial loss following acts of dishonesty “committed with the clear intent to cause [Marac] a loss”.
The High Court ruled Mr Atkinson had been dishonest: he did not fully disclose the state of the Rapson account when asked for periodic reports by the Marac board; he concealed unauthorised advances by supressing arrears of interest which were accruing; he lied to Marac’s internal auditor stating Rapson was holding new motor vehicles in a warehouse when this was untrue; and he did not tell Marac senior executives that he had lost control of the Rapson account and was exposing Marac to further losses.
The Court of Appeal ruled Vero did not have to pay the claim because the dishonesty was not carried out with intent to cause loss.  Mr Atkinson acted dishonestly to protect his job, not to cause Marac further loss.  There was no evidence Mr Atkinson gained any financial advantage from his unauthorised actions, other then the benefits of his continued employment.  He left Marac in early 2010.  
Like securities traders who get in over their head, conceal losses and continue trading (even recklessly) to recover their position, it is not theft to push on with the intent of making money.
Vero v. Heartland Bank – Court of Appeal (7.07.15)

15.076