{"id":2633,"date":"2015-10-13T17:58:04","date_gmt":"2015-10-13T17:58:04","guid":{"rendered":"https:\/\/www.sblegal.ca\/?p=2633"},"modified":"2026-04-01T17:59:13","modified_gmt":"2026-04-01T17:59:13","slug":"3m-u-s-district-court-applies-ownership-provision-in-finding-no-coverage-for-loss-of-undistributed-limited-partnership-earnings-in-investment-fraud","status":"publish","type":"fidelityblog","link":"https:\/\/www.sblegal.ca\/wordpress\/fidelity-blog\/3m-u-s-district-court-applies-ownership-provision-in-finding-no-coverage-for-loss-of-undistributed-limited-partnership-earnings-in-investment-fraud\/","title":{"rendered":"3M: U.S. District Court applies Ownership Provision in finding No Coverage for Loss of Undistributed Limited Partnership Earnings in Investment Fraud"},"content":{"rendered":"

In\u00a03M Company v. National Union Fire Insurance Company of Pittsburgh, PA<\/em>, the U.S. District Court for the District of Minnesota considered and applied a crime policy\u2019s Ownership Provision in concluding that the insured did not have coverage for the loss of investment earnings suffered when an investment entity in which it had a limited partnership interest collapsed due to its principals\u2019 Ponzi scheme. The decision provides an example of the interaction between the Ownership Provision and statutory and common law concepts of \u201cownership\u201d as they relate to partnerships.<\/p>\n

The Facts<\/strong><\/h3>\n

In 1999, 3M began investing its employee benefit plan assets in WG Trading Company LP (\u201cWG Trading\u201d). 3M\u2019s investment was structured as a limited partnership in WG Trading. The principals of WG Trading also maintained another entity, WG Trading Investors, LP (\u201cWG Investors\u201d), which was a limited partner in WG Trading. WG Trading was a regulated and audited entity, whereas WG Investors was not.<\/p>\n

The principals of WG Trading and WG Investors were running a Ponzi scheme and, over the course of several years, diverted hundreds of millions of dollars from the two entities for their personal use. In 2009, the SEC and the CFTC initiated civil lawsuits against the WG entities and the principals, and obtained receivership orders. The receiver had considerable success in recovering assets; in fact, 3M was able to recover 100 per cent of its net capital contributions to WG Trading.<\/p>\n

Nevertheless, 3M took the view that it had still suffered a loss, because at least some of its capital had been invested by WG Trading in legitimate vehicles and had produced legitimate earnings, but 3M was never paid those legitimate earnings.<\/p>\n

The Ownership Provision<\/strong><\/h3>\n

3M submitted a claim to National Union under its Blanket Crime Policy, and to its excess crime insurers under their follow-form excess policies. National Union determined that there was no coverage under the Crime Policy because, even if the invested funds generated legitimate earnings, the earnings did not fall within the condition of the Ownership Provision set out in Endorsement 8 to the policy, which provided that:<\/p>\n

The insured property may be owned by the Insured, or held by the Insured in any capacity whether or not the Insured is legally liable, or may be property as respects which the Insured is legally liable.<\/em><\/p><\/blockquote>\n

National Union took the view that, even if 3M\u2019s investment with WG Trading generated legitimate earnings that could be quantified and attributed to 3M, those earnings were neither owned by 3M nor held by 3M in any capacity, nor were they property for which 3M was legally liable. 3M argued that the Ownership Provision did not apply or, in the alternative, that it could be applied in a manner that would bring the claim within coverage.<\/p>\n

3M initially contended that the Ownership Provision did not even apply to the claim, because it applied only to \u201cinsured property\u201d, whereas the Employee Dishonesty insuring agreement encompassed \u201cdirect losses of Money, Securities or other property caused by Theft or forgery<\/em>\u201d. Similarly, Theft was defined as \u201cthe unlawful taking of Money, Securities or other property<\/em>\u201d. 3M contended that, because the Employee Dishonesty insuring agreement and the definition of Theft used the term \u201cother<\/u>\u00a0property\u201d rather than \u201cinsured<\/u>\u00a0property\u201d, the Ownership Provision had no application in the circumstances.<\/p>\n

The Court quickly dismissed this argument, holding that:<\/p>\n

Clearly, then, Endorsement 8 is not intended to define \u201cinsured property,\u201d as 3M\u2019s argument implies. Instead, Endorsement 8 simply uses the term \u201cinsured property\u201d to limit the coverage afforded under the \u201cEmployee Dishonesty\u201d insuring agreement. And giving that phrase its plain and ordinary meaning, \u2026 the phrase \u201cinsured property\u201d can only be understood as a shorthand way of saying \u201cproperty whose loss is insured under this Policy\u201d\u2014that is, property that is insured under at least one of the insuring agreements in the Policy, such as the \u201cEmployee Dishonesty\u201d insuring agreement.<\/em><\/p>\n

Indeed, because \u201cinsured property\u201d is not a defined term, the Court is at a loss to know what else it could mean. If it does not refer to property whose loss is insured under one or more of the various insuring agreements, then the Policy itself becomes nonsensical.<\/em><\/p><\/blockquote>\n

Did 3M \u201cOwn\u201d the Earnings?<\/strong><\/h3>\n

The more conceptually interesting ruling in the Court\u2019s decision concerned whether 3M\u2019s earnings came within the Ownership Provision. National Union contended that they did not, as 3M only owned a limited-partnership interest in WG Trading itself, rather than any of WG Trading\u2019s assets. The Court accepted National Union\u2019s position, holding that:<\/p>\n

\u2026 what 3M owned was a limited-partnership interest in WG Trading. Up until the point at which earnings were distributed to the partners, the earnings of WG Trading were owned by WG Trading, and not by 3M or any of the other limited partners.<\/em><\/p>\n

As noted, 3M\u2019s investment was structured as a limited-partnership interest in WG Trading. WG Trading\u2019s partnership agreements are governed by Delaware law [which] is crystal clear that a limited partner such as 3M has \u201cno interest in specific limited partnership property.\u201d The partner\u2019s right to receive distributions of the partnership\u2019s assets does not change this fact.<\/em><\/p><\/blockquote>\n

Consequently, the lost earnings were not \u201cowned\u201d by 3M within the meaning of the crime policy, and the insurers had no obligation to indemnify 3M.<\/p>\n

\u201cLegally Liable\u201d<\/strong><\/h3>\n

In a footnote, the Court noted that 3M had argued for the first time in its reply brief that it had fiduciary duties in respect of the lost earnings and, therefore, the earnings fell within the \u201cproperty as respects which the Insured is legally liable<\/em>\u201d part of the Ownership Provision. The Court, relying on established authority, stated that it would not consider this argument, as it had been raised for the first time in 3M\u2019s reply brief.<\/p>\n

Conclusion<\/strong><\/h3>\n

3M provides two key findings of assistance to fidelity insurers. First, it rejects the contention that the Ownership Provision acts as anything other than a pre-condition for recovery under the policy. In our view, 3M\u2019s argument on this point was without merit, insofar as it attempted to draw an artificial distinction between the term \u201cinsured property\u201d as used in the Provision, and the term \u201cother property\u201d as used in the relevant insuring agreement and the definition of Theft. A loss must fall within an insuring agreement\u00a0and<\/u>\u00a0must also meet the Ownership Provision.<\/p>\n

Second, and more importantly, the Court carefully analyzed the limited partnership agreements, and applied state law, in concluding that what 3M actually \u201cowned\u201d was not any of WG Trading\u2019s assets, but rather a limited partnership interest in WG Trading itself, with only the possibility of future receipt of earnings upon distribution.<\/p>\n

The same general principles of partnership law apply in Canadian common law jurisdictions such as Ontario. Subsection 7(2) of the Ontario\u00a0Limited Partnerships Act<\/em>\u00a0states that a limited partner\u2019s interest in the limited partnership is distinct personal property, while subsection 21(1) of the Ontario\u00a0Partnerships Act<\/em>\u00a0makes it clear that partnership property is legally distinct from property owned by the partners themselves. Thus, it is arguable that the same result should follow, were such a claim to be litigated north of the border.<\/p>\n

3M Company v. National Union Fire Insurance Company of Pittsburgh, PA<\/em>., 2015 WL 5687879 (D. Minn.)<\/p>\n","protected":false},"excerpt":{"rendered":"

In\u00a03M Company v. National Union Fire Insurance Company of Pittsburgh, PA, the U.S. District Court for the District of Minnesota considered and applied a crime policy\u2019s Ownership Provision in concluding that the insured did not have coverage for the loss of investment earnings suffered when an investment entity in which it had a limited partnership … Continued<\/a><\/p>\n","protected":false},"featured_media":2618,"template":"","fidelityblog-category":[],"class_list":["post-2633","fidelityblog","type-fidelityblog","status-publish","has-post-thumbnail","hentry"],"acf":[],"yoast_head":"\n3M: U.S. District Court applies Ownership Provision in finding No Coverage for Loss of Undistributed Limited Partnership Earnings in Investment Fraud - Stieber Berlach<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.sblegal.ca\/wordpress\/fidelity-blog\/3m-u-s-district-court-applies-ownership-provision-in-finding-no-coverage-for-loss-of-undistributed-limited-partnership-earnings-in-investment-fraud\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"3M: U.S. District Court applies Ownership Provision in finding No Coverage for Loss of Undistributed Limited Partnership Earnings in Investment Fraud - Stieber Berlach\" \/>\n<meta property=\"og:description\" content=\"In\u00a03M Company v. 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