Actors Fed'l Credit Union v. Cumis Insur. Soc.


New York Law Journal


Judge Marvin Aspen

Under contract with Actors Federal Credit Union, Mount Vernon Money Center's (MVMC) provided services for Actors' ATM machines. MVMC officers Egan and McGarry perpetrated a fraud. When its assets were seized on Feb. 11, 2010, MVMC was to be holding $3.9 million for Actors. Actors recovered $1.4 million under a Jan. 18, 2012, order. It alleged Cumis, the insurance company, breached its contract when it denied the claim for losses stemming from MVMC's fraud and theft. The court denied Cumis' motions to exclude evidence related to any theft by Egan and McGarry before February 2010, and to exclude evidence of settlement with Delta Federal Credit Union. In light of Actor's claim that its loss was caused by an ongoing criminal scheme, Egan and McGarry's pre-February 2010 criminal activity was relevant and not prejudicial. Actor's own motion to exclude Cumis' evidence as to ambiguous contract provisions was denied as procedurally defective. Moreover case law contradicted Actor's position. Citing Morgan Stanley Group v. New England Ins., the court noted upon finding an insurance provision ambiguous, a court may accept any available extrinsic evidence to determine the meaning intended by parties during the contract's formation.

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