pursuit of obligations due the bank. Further, 12 U.S.C. § 1821(d)(12)(B) permits RTC to "enforce or recover under a directors or officers liability insurance contract or depository institution bond." Thus, it would seem that RTC as receiver for United can step into the shoes of the insured and enforce the Bond.
As RTC did not oppose this motion, this argument was not raised. However, it is clear that the plain language of the Bond would prohibit RTC from trying to recover under the Bond. Section 3 of the Bond, entitled "Discovery" states that coverage "applies to loss discovered by the Insured during the Bond Period. " Fidelity Bond, p. 5. (emphasis added). The "Bond Period" is defined as running "from 12:01 a.m. on February 17, 1989 to 12:01 a.m. on February 17, 1990." See Fidelity Bond, Daily Report. While it may be contested exactly when discovery occurred,
Section 12, "Termination or Cancellation", provides that 'termination of the bond . . . terminates liability for any loss sustained by such Insured which is discovered after the effective date of such termination." Fidelity Bond, p. 7.
RTC was not appointed receiver until three months after the Bond was cancelled. At best, then, RTC could not have discovered a loss until that time. Accordingly, RTC cannot step into the shoes of United to recover under the Bond.
II. F&D as a Joint Tortfeasor
Numerous codefendants have asserted crossclaims for contribution against F&D pursuant to the New Jersey Joint Tortfeasor Contribution Law, N.J.S.A. 2A:53A-1 et seq. F&D argues that the codefendants cannot invoke this law because F&D cannot be found liable "in tort" to RTC.
The New Jersey Joint Tortfeasor Contribution Law provides that the "right to contribution exists among joint tortfeasors." Id. § 2A:53-2. The statute defines "joint tortfeasors" as "two or more persons jointly or severally liable in tort for the same injury." Id. § 2A:53-1. The only claim asserted by RTC against F&D is for the alleged breach of its contractual obligation under the bond. See Amended Complaint, Count 15. RTC did not allege that F&D committed any tortious conduct. In fact, if F&D is liable for anything its liability is contractual in nature. Hence, F&D is not a "joint tortfeasor" and cannot be liable to any codefendant for contribution. Accordingly, the Joint Tortfeasor Contribution Law is inapplicable and codefendants' crossclaims for contribution must be dismissed.
III. F&D and Common Law Indemnity
In Allied Corp v. Frola, 730 F. Supp. 626, 630 (D.N.J. 1990), this court defined when indemnification is available under New Jersey Law: "when a contract explicitly provides for indemnification or when a special legal relationship between the parties creates an implied right to indemnification. In either case a party is entitled to indemnification only if he or she is without fault and his or her liability is purely constructive, secondary or vicarious." (Citations omitted)
The codefendants do not assert an explicit right to indemnification but rather an implied right based on allegations that their liability to RTC is merely constructive, vicarious or secondary to that of F&D. F&D argues that "as a matter of law, codefendants may not seek implied indemnification from F&D for two reasons: (1) no "special legal relationship" between any one of them and F&D exists; and (2) codefendant's [sic] potential liability to plaintiff is separate and distinct from that of F&D." F&D's Brief, p. 13.
The Court concurs with F&D's argument. Codefendants have not pled, and cannot demonstrate the existence of a special legal relationship which would support indemnification. Codefendants and F&D never had a lessor-lessee relationship, id. at 639, nor a bailor-bailee relationship, see Ramos v. Browning Ferris Industries, 103 N.J. 177, 189, 510 A.2d 1152 (1986), nor a principal-agent relationship. Hagen v. Koerner, 64 N.J. Super. 580, 586-87, 166 A.2d 784 (App. Div. 1960). And, based upon the language of the Bond, they did not even have an insurer-insured relationship. Thus, it is unclear exactly what "special relationship" codefendants thought they had which would have satisfied the prerequisites for indemnification. As codefendants have not suggested such a relationship in their pleadings, it should not be for this Court to look into a crystal ball and find a relationship to save codefendants from this Rule 12(b)(6) attack.
Moreover, codefendants have failed to allege that they and F&D are responsible for the same ultimate loss. A claim of indemnity arises only if the indemnitor and indemnitee are responsible to plaintiff for the same ultimate loss. What we have here is two distinct independent sets of wrong. The loss occasioned by F&D is entirely different from and independent of the loss caused by codefendants. As discussed above, F&D's liability, if any, is based exclusively on its alleged breach of contract; the codefendant's liability is premised in tort.
Therefore, the cross claims for indemnification will also be dismissed.
For the reasons discussed above, F&D's motion to dismiss all cross-claims for indemnification and contribution for failure to state a claim will be granted.
An appropriate order is attached.
Dated: March 14, 1994
ALFRED M. WOLIN, U.S.D.J.
In accordance with the Court's Opinion filed herewith,
It is on this 14th day of March, 1994
ORDERED that defendant Fidelity & Deposit Company of Maryland's motion to dismiss all cross-claims for indeminification and contribution for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is granted.
ALFRED M. WOLIN, U.S.D.J.