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Texas high court asked to consider bad check loss case against Lloyd’s


A federal appeals court is asking the Texas Supreme Court for its advice in litigation filed against Lloyd’s of London underwriters by a precious metal trader that incurred a loss of more than $1 million after a thief forged checks and intercepted two gold coin shipments.

Dallas-based Dillon Gage Inc. had a Lloyd’s policy that excluded coverage for any loss incurred “‘consequent upon’ handing over-insured property to any third party against payment by a fraudulent check,” according to Thursday’s filing by the 5th U.S. Circuit Court of Appeals in New Orleans in Dillon Gage, Inc. of Dallas v. Certain Underwriters at Lloyd’s.

in January 2018, Dillon Gage received an order for $549,000 in gold coins it thought came from an Alabama orthopedic surgeon, when in fact a criminal had placed the order. After a check purportedly sent by the surgeon’s wife cleared, the order was sent to a United Parcel Service facility and retrieved within three minutes after its arrival.

The thief placed another order for $655,000 worth of coins the same day. The check cleared, and 10 days later that thief intercepted the second package as well. The company was left without more than $1.2 million in gold coins as well as the payments it thought it had received for them.

Dillon Gage filed an insurance claim, but citing the “consequent upon” exclusion, the underwriters denied the claim and said only $12,500 applied under an exception to the exclusion.

Dillon Gage filed suit for breach of contract in U.S. District Court in Dallas, which ruled in the insurer’s favor.

On appeal, the three-judge appeals court panel asked the Texas Supreme Court to interpret the state law. “The Texas Supreme Court has neither interpreted the phrase consequent upon nor interpreted an analogous phrase in an analogous contract. So we ask for the Texas Supreme Court’s assistance in defining the scope of the policy’s exclusion,” the court said, in retaining the appeal pending a response from the state high court.

Attorneys in the case did not respond to requests for comment.





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