                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                               __________________

                                 No. 00-1230EM
                               __________________

Solon R. Gershman,                     *
                                       *
             Appellant,                *
                                       *
      v.                               * On Appeal from the United
                                       * States District Court
                                       * for the Eastern District
American Casualty Company of           * of Missouri.
Reading, PA, a Pennsylvania            *
Corporation, and CNA Insurance         *
Company, an Illinois Corporation,      *
                                       *
             Appellees.                *
                                  ___________

                          Submitted: January 11, 2001
                              Filed: June 5, 2001
                                  ___________

Before RICHARD S. ARNOLD and BOWMAN, Circuit Judges, and KYLE,1 District
      Judge.
                            ___________

RICHARD S. ARNOLD, Circuit Judge.

    Solon Gershman appeals the District Court's grant of American Casualty
Company of Reading's motion to dismiss for failure to state a claim upon which relief


      1
      The Hon. Richard H. Kyle, United States District Judge for the District of
Minnesota, sitting by designation.
can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Mr. Gershman's
suit against American Casualty alleged a failure to perform its obligations under an
insurance policy and vexatious refusal to defend and indemnify. The sole issue before
us is whether the District Court erred in applying Mo. Rev. Stat. § 369.124.5, which
has to do with insurers' duty to give notice of policy endorsements to state regulatory
authorities. We reverse and remand.

                                            I.

       Solon Gershman was a director of Missouri Savings Association. The
Association initially purchased a directors' and officers' liability insurance policy from
American Casualty in 1983. The policy contained several endorsements.2 One of the
endorsements, the "receivership" endorsement, stated that American Casualty would
not pay "any claim made against the Directors or Officers based upon or attributable
to any action or proceeding brought by . . . any . . . national regulatory agency . . .
including any type of legal action which such agencies have the right to bring as
receiver, conservator, liquidator or otherwise." Joint Appendix (J.A.) 31. The policy
also contained an "insured v. insured" endorsement which stated that American
Casualty would not be liable for any payments for "any claim made against any
Director or Officer . . . by the Institution." Id. at 34.

       The Association became insolvent. The Resolution Trust Corporation (RTC),
acting as receiver, filed suit against Mr. Gershman alleging mismanagement, breach of
fiduciary duty, and other improper conduct. American Casualty was notified of the
RTC suit against Mr. Gershman but denied coverage under the "receivership" and
"insured v. insured" endorsements.


      2
       At oral argument counsel stated that American Casualty initially issued the
policy without the relevant endorsements. The endorsements appeared in a policy
renewal in 1988.
                                           -2-
       Mr. Gershman filed this action in a Missouri state court seeking damages and
attorneys' fees because of American Casualty's refusal of coverage as to the RTC suit.
American Casualty removed the case to the District Court on the basis of 28 U.S.C.
§ 1332(a)(1), diversity of citizenship. In the District Court, American Casualty filed
a motion to dismiss the action arguing that the "receivership" and "insured v. insured"
endorsements barred coverage. Mr. Gershman argued that the endorsements were
ineffective because American Casualty had failed to serve written notice of the
endorsements on the director of the division of finance, as required by Mo. Rev. Stat.
§ 369.124.5.

       The District Court granted the motion to dismiss and ruled that, although the
language of § 369.124.5 is mandatory, the statute provides no penalty for
noncompliance. Therefore, concluded the Court, there is no indication that the
Missouri legislature "intended to render unfiled endorsements void as a matter of law.
It would be inappropriate for the Court to declare the endorsements void without any
legislative guidance or binding authority."3 Solon R. Gershman v. American Cas. Co.
of Reading PA, No. 4:99-CV-128, slip op. at 5 (E.D. Mo. Nov. 24, 1999).

      On appeal, Mr. Gershman argues that the District Court erred in granting
American Casualty's motion to dismiss. Mr. Gershman contends that the plain
language of the statute voids the unfiled endorsements and prevents them from forming
any part of the policy.4 American Casualty asserts that the absence of any penalty
provision in the statute indicates a legislative intent not to void unfiled endorsements.


      3
        Deciding the case upon this issue, the Court did not reach Mr. Gershman's claim
of vexatious refusal to defend and indemnify, or American Casualty's claim that CNA,
a co-defendant, was not an entity capable of being sued. Therefore, we will not reach
those issues on appeal.
      4
        Mr. Gershman concedes that if the endorsements are valid coverage of his claim
is barred.
                                           -3-
                                           II.

      We look to the law of Missouri to decide the merits of the case. See Erie R.R.
v. Tompkins, 304 U.S. 64, 78 (1938). "We review the district court's application of
[Missouri law] de novo without deference." Brandenburg v. Allstate Ins. Co., 23 F.3d
1438, 1440 (8th Cir. 1994) (citing Salve Regina College v. Russell, 499 U.S. 225, 239
(1991).

      In relevant part, § 369.124.5 provides:

      The [Savings and Loan] association at its cost may obtain insurance to
      protect it, its directors, officers and employees against losses arising out
      of claims of negligence or misconduct, both those for which the
      association may indemnify a person under this section and those for which
      no indemnification may be made. Such insurance policy shall be issued
      by an insurance company licensed to do business in this state and shall be
      in such form as approved by the director of the division of finance. No
      modification of the terms shall be made by any insurance company
      without serving prior written notice on the director of the division of
      finance setting forth the proposed changes . . ..

(Emphasis ours.)

       Missouri courts have never addressed whether the failure to serve written notice
of a policy modification as required as by § 369.124 voids the unfiled endorsement.5
Thus, we must predict how a Missouri court would decide this issue. See
Brandenburg, 23 F.3d at 1440. American Casualty invites us to follow case law from
other jurisdictions refusing to void an unfiled endorsement or policy under similar state


      5
         Both parties agree there is no provision elsewhere in the statute providing for
a fine, revocation or suspension of license, or other sanction for failing to comply with
the filing requirement.
                                           -4-
statutes. See McCullough Transfer Co. v. Virginia Sur. Co., 213 F.2d 440, 442 (6th
Cir. 1954) (holding that the absence of an express provision in the Ohio Code rendering
an unfiled endorsement void indicates legislative intent not to void such an
endorsement); Resolution Trust Corp. v. Hedden, 879 F.Supp. 600, 602 (N.D. Miss.
1995); Gary v. American Cas. Co., 753 F.Supp. 1547, 1551 (W.D. Okla. 1990); Cage
v. Litchfield Mut. Ins. Co., 713 A.2d 281, 287 (Conn. Super. Ct. 1997) (holding
"voidance is a drastic measure which this court refrains from imposing in the absence
of legislative direction or binding authority to the contrary”); The Home Indem. Co. v.
Hoechst Celanese Corp., 128 N.C. App. 226, 233, 494 S.E.2d 768, 772-73 (1998)
(holding failure to get approval of exclusion as required by statute does not void
exclusion where statute did not provide for such penalty).6

       We hold otherwise for the following reasons. First, when viewed as a whole,
Mo. Rev. Stat. § 369.124 is different from the statutes involved in cases from other
jurisdictions. The filing requirement at issue here does not appear as a part of a general
insurance regulation statute. It is specifically directed towards savings and loan
institutions. It appears in chapter 369, entitled "Savings and Loan Associations." The
specific filing requirement appears in section 369.124, entitled "Reimbursement of
certain legal costs, when--liability insurance for certain personnel, who may issue,


      6
       See also Highlands Ins. Co. v. American Marine Corp., 607 F.2d 1101, 1104
(5th Cir. 1979), cert. denied, 446 U.S. 918 (1980); Powell v. American Cas. Co. of
Reading, 772 F. Supp. 1188, 1191 (W.D. Okla. 1991); Southern Cas. Co. v. Hughes,
33 Ariz. 206, 212, 263 P. 584, 586 (1928); Penn America Ins. Co. v. Miller, 228 Ga.
App. 659, 660-61, 492 S.E.2d 571, 572-23 (1997); Carrier v. Allstate Ins. Co., 702 So.
2d 367, 371 (La. App. 1997); Progressive Mut. Ins. Co. v. Taylor, 35 Mich. App. 633,
642, 193 N.W.2d 54, 58 (1971); Equity Mut. Ins. Co. v. Allstate Ins. Co., 190 Neb.
515, 520-21, 209 N.W.2d 592, 595 (1973); National Union Fire Ins. Co. v.
Ambassador Group, Inc., 556 N.Y.S.2d 549, 553 (App. Div. 1990); Gifford v. Western
Aviation Ins. Group, 77 Or. App. 645, 650, 713 P.2d 1085, 1087-88 (1986); Butler v.
Bankers Mut. Fire Ins. Co., 76 Pa. D. & C. 352 (C.P. 1951); Franklin v. St. Paul Fire
& Marine Ins. Co., 534 S.W.2d 661, 665 (Tenn. App. 1975).
                                           -5-
policy modifications, how--reciprocal organizations, when, annual report." Section
369.124.1 obligates savings and loan institutions to indemnify officers and directors for
certain claims against them. To make such indemnification possible, Mo. Rev. Stat.
§ 369.124.5 allows the savings and loan associations to obtain liability insurance.
Regarding such insurance the statute goes on to provide that, "No modification of the
terms shall be made by any insurance company without serving prior written notice on
the director of the division of finance setting forth the proposed changes . . .." Mo.
Rev. Stat. § 369.124.5. The statute continues in paragraph six by stating,

      "[I]n the event it appears to the director of the division of finance that
      such directors', officers' and employees' liability insurance policies are not
      available or not available at premium rates which the director of the
      division of finance deems reasonable, then the director of finance . . . may
      permit the establishment of a reciprocal organization on such terms as the
      director of the division of finance may require to provide directors',
      officers' and employees' liability insurance coverage . . .."

Mo. Rev. Stat. § 369.124.6. Unlike the statutes in other jurisdictions, where the sole
purpose of the statutes seems to be insurance regulation, here one of § 369.124's
purposes is to enable the director of the division of finance to monitor liability
insurance policies in order to determine whether a reciprocal organization is needed to
protect the savings and loan industry. Thus, we decline to treat § 369.124 in the same
manner as other jurisdictions have treated similar statutes.

       Second, we are bound by Missouri's rules of statutory construction. When
statutes are unambiguous, " 'courts should regard laws as meaning what they say . . ..' "
In re Thomas, 743 S.W.2d 74 (Mo. 1988) (en banc) (quoting DePoortere v.
Commercial Credit Corp., 500 S.W.2d 724, 727 (Mo. App. 1973)). Here, neither party
contends that Mo. Rev. Stat. § 369.124.5 is ambiguous. Therefore, in applying the
statute we must ascertain the intent of the Missouri legislature by construing the words



                                           -6-
in their plain meaning. Hyde Park Housing P'ship v. Director of Revenue, 850 S.W.2d
82, 84 (Mo. 1993) (en banc).

       Oddly, both parties argue that the plain and ordinary meaning of § 369.124.5
carries the day, yet each party attributes a different meaning to the provision's plain and
ordinary language. Mr. Gershman contends that the words "No modification to the
terms shall be made" means that any attempted modification which was not filed is void
as a matter of law. On the other hand, American Casualty argues that had the
legislature intended an unfiled endorsement to be void it could have easily included
such a penalty in the statute.

      We believe the penalty for noncompliance is expressly provided for in the statute
— the attempted modification is not "made" and therefore never becomes part of the
policy. American Casualty's contention that the statute provides no penalty for
noncompliance with § 369.124.5 would effectively erase the provision from the code.
We must presume that the Missouri legislature intended every word, clause, sentence,
and provision to have effect. In re Thomas, 743 S.W.2d at 76.

        This construction of § 369.124.5 comports with the purpose of the statute as a
whole. If the director of the division of finance is to monitor directors' and officers'
liability insurance in order to determine if liability insurance is available or available at
reasonable premiums, there must be some incentive to encourage insurance companies
to comply with the filing requirements.

       Third, we find support for our determination in Missouri's general insurance
statute regulating the filing of insurance rates and modifications. Mo. Rev. Stat.
§ 379.321 states,

       (1) Every insurer shall file with the director . . . every manual of
       classifications, rules, underwriting rules and rates, every rating plan and

                                             -7-
      every modification of the foregoing which it uses and the policies and
      forms to which such rates are applied.

      (2) [N]o insurer shall make or issue a policy or contract except pursuant
      to filings which are in effect for that insurer . . ..

Mo. Rev. Stat. § 379.321.1 & .2. The penalties for noncompliance with § 379.321.1
and .2 may include fines, suspension of the insurer's license to do business within the
state, or any other penalty provided by law. Mo. Rev. Stat. § 379.361. In § 379.321,
the general insurance statute above, the legislature uses mandatory language, just as it
does in the statute at issue here. But the general insurance statute expressly provides
sanctions other than voiding the policy change. It would be possible to read that statute
as not making such changes void for failure to file. The other sanctions provided in the
statute would be sufficient to encourage compliance. Here, unless the change is held
void, insurers may violate the law with impunity.

       Lastly, there is precedent in our circuit for voiding an unfiled insurance provision
when a Missouri statute does not provide an express penalty for noncompliance. In St.
Joseph Light & Power Co. v. Zurich Insurance Co., 698 F.2d 1351 (8th Cir. 1983), one
of the issues was whether the fire insurance company filed its coinsurance "credits" or
"rates" as required by a Missouri fire insurance statute. We held that the failure to file
the coinsurance "credits" or "rates" rendered the coinsurance clause void. Id. at 1361
(citing Templeton v. Ins. Co. of North American of Pa., 201 S.W.2d 784, 789 (Mo.
App. 1947)).7 There are, as the defendant argues, distinctions between fire co-


      7
        Although not controlling in the case at hand, other cases have held that a failure
to file an endorsement or policy as required by a state statute rendered the unfiled
endorsement or policy void where the statute did not provide for that penalty. See
Hawkins Chem. v. Westchester Fire Ins., 159 F.3d 348, 352 (8th Cir. 1998) (applying
a Minnesota statute); Miller v. National Farmers Union Property & Cas. Co., 470 F.2d
700, 704 (8th Cir. 1972) (same); Sawyer v. Midland Ins. Co., 383 N.W.2d 691, 697
(Minn. App. 1986); Commercial Union Assurance Co. v. Preston, 115 Tex. 351, 355-
                                            -8-
insurance rates and policy endorsements limiting coverage. On the whole, however,
St. Joseph supports Mr. Gershman's position here.

                                         III.

       For the foregoing reasons, we hold that American Casualty's failure to file the
"receivership" and "insured v. insured" endorsements pursuant to Mo. Rev. Stat.
§ 379.124.5 rendered the endorsements unenforceable in this action.

      The judgment is reversed, and the case remanded to the District Court for further
proceedings consistent with this opinion.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




56, 282 S.W. 563, 565 (1926); Mutual Life Ins. Co. of N.Y. v. Daddy$ Money, Inc.,
646 S.W.2d 255, 257 (Tex. App. 1983); see also Anderson v. Minnesota Ins. Guar.
Assoc., 520 N.W.2d 155 (Minn. 1994) (dictum) (citing Miller favorably), rev'd on other
grounds, 534 N.W.2d 706 (Minn. 1995).
                                          -9-
