## Facts

- BancInsure, Inc. issued a directors and officers/professional liability policy to a bank (County Bank).
- The policy included an insured-versus-insured exclusion in Section IV.A.21 stating that BancInsure was not liable for any claim “brought or maintained by or on behalf of any Insured, or by any receiver or conservator of the Company.”
- County Bank later failed, and the Federal Deposit Insurance Corporation (FDIC) was appointed as receiver.
- Acting as receiver, the FDIC pursued claims against former bank directors and officers, including William R. Hawker and Patrick G. Doak, seeking to recover losses the FDIC attributed to their alleged wrongful acts.
- The FDIC sought insurance coverage from BancInsure for those receiver-brought claims under the policy issued to the bank.
- BancInsure denied coverage, relying on the insured-versus-insured exclusion’s express reference to claims brought by “any receiver.”
- The FDIC contended the exclusion’s scope was unclear when read against the parties’ policy history: a separate “regulatory exclusion” addressing regulator claims had appeared in an earlier policy but was later removed by endorsement and did not appear in the operative policy.
- The FDIC sued in federal district court for coverage. The district court granted summary judgment to BancInsure, concluding the insured-versus-insured exclusion barred coverage for claims brought by the FDIC as receiver.
- The FDIC appealed to the United States Court of Appeals for the Ninth Circuit.

## Issues

1. Does the policy’s insured-versus-insured exclusion, which bars coverage for claims brought by “any receiver,” exclude coverage for claims brought by the FDIC when it acts as receiver of the failed bank?
2. Does the omission of a separate regulatory exclusion from the operative policy create ambiguity or otherwise limit the insured-versus-insured exclusion so that coverage is available for the FDIC’s receiver claims?

## Decision

- The Ninth Circuit affirmed the district court’s summary judgment for BancInsure.
- The court held that the insured-versus-insured exclusion unambiguously applied to the FDIC when the FDIC sued in its capacity as receiver, because the FDIC fit within the exclusion’s reference to “any receiver.”
- The court rejected the FDIC’s drafting-history argument that removal or absence of a prior regulatory exclusion created ambiguity or restored coverage where the operative policy independently and expressly excluded receiver-brought claims.

## Legal Principles

- Insurance policy exclusions are enforced according to their plain language when the text is clear.
- An insured-versus-insured exclusion that expressly bars claims brought by “any receiver” applies to the FDIC when the FDIC brings claims as a statutory receiver of the insured bank.
- The fact that a separate exclusion appeared in an earlier policy (and was later deleted or omitted) does not, by itself, change the meaning of an exclusion that remains in the operative policy.
- Drafting history does not create ambiguity where the operative contract language is direct and reasonably susceptible to only one meaning.

## Conclusion

In *Hawker v. Doak*, the Ninth Circuit affirmed summary judgment for BancInsure, holding that the policy’s insured-versus-insured exclusion barring claims brought by “any receiver” plainly applied to the FDIC acting as receiver for the failed bank, and that the prior removal or omission of a separate regulatory exclusion did not make the receiver exclusion ambiguous or permit coverage.


Hawker v. Doak, 685 Fed. Appx. 565 (2017)