UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THE BOARD OF TRUSTEES OF THE
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, Local #141
Pension Fund ("The Fund"); GEORGE
P. STEFANOW; PATRICK J.
MCDERMOTT; RICHARD W. YAHN;
EDMUND J. YAHN; HOWARD ALLEN,
as Trustees of the fund ("Trustees"),
Plaintiffs-Appellees,

and

DANIEL B. AMEND; JAMES                  No. 95-2802
STUBENROD; HOWARD ALLEN;
EDMUND J. YAHN; JOHN KEMP, SR.;
LEWIS CRIMINSKI; PAUL W. SIMONS;
JOSEPH L. SBERNA, individually and
as former trustees,
Plaintiffs,

v.

THE AETNA CASUALTY & SURETY
COMPANY, a foreign corporation,
Defendant-Appellant.
THE BOARD OF TRUSTEES OF THE
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, Local #141
Pension Fund ("The Fund"); GEORGE
P. STEFANOW; PATRICK J.
MCDERMOTT; RICHARD W. YAHN;
EDMUND J. YAHN; HOWARD ALLEN,
as Trustees of the fund ("Trustees"),
Plaintiffs-Appellants,

and

DANIEL B. AMEND; JAMES                                              No. 95-2826
STUBENROD; HOWARD ALLEN;
EDMUND J. YAHN; JOHN KEMP, SR.;
LEWIS CRIMINSKI; PAUL W. SIMONS;
JOSEPH L. SBERNA, individually and
as former trustees,
Plaintiffs,

v.

THE AETNA CASUALTY & SURETY
COMPANY, a foreign corporation,
Defendant-Appellee.

Appeals from the United States District Court
for the Northern District of Virginia, at Wheeling.
Frederick P. Stamp, Chief District Judge.
(CA-93-199-CV-5)

Argued: December 5, 1996

Decided: January 27, 1997

Before WILKINS and LUTTIG, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

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Affirmed in part, vacated in part, and remanded by per curiam unpub-
lished opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas A. Doyle, BAKER & MCKENZIE, Chicago,
Illinois, for Appellant. Patrick Stanley Cassidy, CASSIDY, MYERS,
COGAN, VOEGELIN & TENNANT, L.C., Wheeling, West Virginia,
for Appellees. ON BRIEF: Donald J. Hayden, Lisa S. Brogan,
BAKER & MCKENZIE, Chicago, Illinois; Avrum Levicoff,
ANSTANDIG, LEVICOFF & MCDYER, Pittsburgh, Pennsylvania,
for Appellant. Wray V. Voegelin, CASSIDY, MYERS, COGAN,
VOEGELIN & TENNANT, L.C., Wheeling, West Virginia, for
Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellees/cross-appellants, the Board of Trustees of the Interna-
tional Brotherhood of Electrical Workers Local #141 Pension Fund
(the "Fund"), purchased a "Pension and Welfare Fund Fiduciary
Responsibility Insurance Policy" from appellant/cross-appellee Aetna
Casualty & Surety Co. ("Aetna") in 1978. The policy provided in rel-
evant part:

         I. INSURING AGREEMENT

         The Company will pay on behalf of the Insured all sums
         which the Insured shall become legally obligated to pay as
         Damages on account of any claim made against the Insured
         for any Wrongful Act.

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          ...

          (3) "Damages" shall mean sums of money pay-
          able as compensation for loss or in discharge of an
          obligation of an Insured to make good a shortage
          in the Insured Trust or Employee Benefit Fund.
          The word "Damages" shall not include:

          (a) Fines, penalties, taxes, or punitive or
          exemplary damages.

J.A. at 53.

From 1986-1988, the Fund's then-incumbent board of trustees (the
"former trustees") failed to timely sign formal amendments to the
pension plan's governing documents required by three different tax-
related statutes, and, as a result, the Fund's tax exempt status was
drawn into question. See J.A. at 187. In 1989, the former trustees
attempted to amend retroactively the Fund's governing documents to
comply with these laws. Additionally, they sought a determination
from the IRS that the pension plan, as amended, remained qualified
as tax exempt during these years. See id. The IRS took the position
that the former trustees had failed to amend the plan by the required
compliance dates under the three statutes and thus that the Fund did
not qualify for tax exempt status in 1986-88. See J.A. at 187-88. After
negotiations with the IRS, the Fund participated in the IRS's "Closing
Agreement Program" ("CAP"), ultimately paying to the United States
Treasury $142,000 in order to maintain its tax exempt status for the
years in question. See J.A. at 189.

Prior to consummation of this transaction between the IRS and the
Fund, however, the Fund filed a claim for insurance coverage with
Aetna, which Aetna eventually denied. Aetna denied coverage on the
ground that the Fund's payment to the IRS constituted a tax, and the
insurance policy explicitly excluded coverage for taxes owed. See
J.A. at 188-89.

Prior to concluding its transaction with the IRS, the Fund's current
trustees also filed suit against the Fund's former trustees (the "trustee-

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trustee suit"), alleging that the former trustees breached their fiduciary
duty by failing to sign the amendments. The Fund claimed as dam-
ages in this suit solely the amount that the Fund was negotiating to
pay to the IRS under CAP, together with attendant attorney's fees.
See id. The parties to this trustee-trustee suit ultimately entered into
a court-approved consent judgment against the former trustees for
$293,478.22 (representing the $142,000 payment to the IRS plus
attorney's fees), plus interest at 10% per annum. See id. The settle-
ment provided that the Fund would not seek to execute the judgment
against the personal assets of the individual former trustees, but,
rather, would look solely to Aetna in order to satisfy the judgment.
See J.A. at 122. The former trustees also assigned any and all rights
against Aetna to the Fund. See id.

Subsequent to executing the CAP settlement with the IRS, the cur-
rent trustees sued Aetna for a declaratory judgment that Aetna was
liable under the policy either for the CAP payment or for the judg-
ment awarded in the trustee-trustee suit. See J.A. at 189. On cross-
motions for summary judgment, the court rendered judgment in favor
of the Fund, holding that the Fund's payment to the IRS was neither
a "tax" nor a "penalty," and thus that the payment did constitute
"damages" covered under the policy. See J.A. at 193-95. Alterna-
tively, the district court found that Aetna was liable to pay the former
trustees' debt to the current trustees arising from the consent judg-
ment in the trustee-trustee suit, because this sum, although based
solely on the sum paid to the IRS, was clearly tort law damages for
breach of fiduciary duty rather than a tax or a penalty. See J.A. at 195-
96. Although the district court awarded the Fund a total of
$293,478.22 (the exact amount of the judgment in the trustee-trustee
litigation), the court denied the plaintiff's request for "costs, addi-
tional attorney's fees, prejudgment interest and damages for annoy-
ance and inconvenience." J.A. at 197.

From the district court's grant of summary judgment, Aetna
appeals. The Fund cross-appeals the district court's failure to award
pre-judgment interest and attorney's fees. For the reasons that follow,
we affirm the district court's grant of summary judgment. However,
we remand the damages issue to the district court because, although
the district court properly exercised its discretion by declining to

                     5
award pre-judgment interest, the Fund is entitled to the award of attor-
ney's fees under West Virginia law.

I.

If Aetna is liable to the Fund for either the judgment awarded in
the trustee-trustee suit or for the Fund's payment to the IRS pursuant
to the CAP settlement, then summary judgment was properly granted
to the Fund. We conclude that Aetna is, indeed, liable to the Fund for
the judgment awarded against the former trustees in the trustee-trustee
suit. Accordingly, we need not, and do not, reach the question of
Aetna's liability for the Fund's payment to the IRS pursuant to the
CAP settlement.

Under the express terms of the settlement agreement and consent
judgment reached in the trustee-trustee litigation, the Fund obtained
all rights that the former trustees possessed against Aetna. The former
trustees agreed to pay $293,478.22 in exchange for their release from
liability for an admitted breach of fiduciary duty in failing to ensure
that the Fund's charter was formally amended. Because the former
trustees are also insured under the Aetna policy, this amount is a
"sum[ ] which the Insured [is] legally obligated to pay as Damages on
account of [a] claim," and therefore Aetna is obligated to pay this
amount to the Fund (standing in the shoes of the former trustees),
under the express terms of Part I of the insuring agreement. J.A. at
53.

Aetna agrees that, generally, a breach of fiduciary duty is covered
under its policy. It argues, however, that the damages award in the
trustee-trustee suit is, in reality, a tax or a penalty, because the dam-
ages award was in the amount of the Fund's tax liability, as agreed
upon with the IRS. "The underlying tax or penalty liability is not
changed," Aetna contends, "by claiming that a tort occurred that
caused one to be liable for those taxes." Appellant's Br. at 28. There-
fore, it argues, the former trustees' payment to the Fund is excluded
from coverage under Exclusion 3(a) of the Aetna insurance policy.

While we are not unsympathetic to this argument, absent a claim
that the trustee-trustee litigation was a sham,* we are ultimately
_________________________________________________________________
*The district court expressly holding that the trustee-trustee suit was
"not a sham and [ ] permissible." J.A. at 196. Aetna does not argue on

                     6
unpersuaded. Even though the $293,478.22 recovery in the trustee-
trustee suit was based entirely upon the amount the Fund paid the IRS
in settlement of the Fund's tax liability, the award in the trustee-
trustee suit is unquestionably a tort law compensatory damage award.
As such, the award simply does not constitute a"[f]ine[ ], penalt[y],
tax[ ], or punitive or exemplary damages" award. See J.A. at 53. Con-
sequently, the award is not excluded by the express terms of Exclu-
sion 3(a) of the insuring agreement.

Even were it less clear that the award falls outside any of the con-
tract's exclusions from coverage, Aetna could not be relieved of its
contractual obligation to the Fund. "`It is well settled law in West Vir-
ginia that [ambiguous terms in] insurance contracts are to be strictly
construed against the insurance company and in favor of the
insured.'" National Mut. Ins. Comp. v. McMahon & Sons, Inc., 356
S.E.2d 488, 494 (W. Va. 1987) (quoting West Virginia Pub. Employ-
ees Ins. Bd. v. Blue Cross Hosp. Serv., Inc. , 328 S.E.2d 356, 359 n.3
(W. Va. 1985)) (alterations in original). This rule applies especially
"where the policy language involved is exclusionary" so that "the pur-
pose of providing the indemnity will not be defeated." Id. If the con-
tract is not clear that the judgment award in the trustee-trustee suit is
neither a "tax" nor a "penalty," it is, at the very least, ambiguous as
to whether it is either.

We therefore hold that the district court did not err in concluding
that Aetna is liable to the Fund for the tort law damages awarded in
the trustee-trustee suit.

II.

The district court, stating that there was no evidence in the record
that Aetna acted in bad faith, did not grant the Fund's request for pre-
judgment interest in the amount of the post-judgment interest awarded
in the trustee-trustee suit or the Fund's request for attorneys fees
incurred in pursuing the instant declaratory judgment action. The
Fund argues that, in these regards, the district court erred. For the rea-
_________________________________________________________________
appeal -- and we find no basis in the record for holding -- that this con-
clusion is clearly erroneous.

                     7
sons that follow, we affirm the district court's decision not to award
pre-judgment interest in the amount of the post-judgment interest
awarded in the trustee-trustee suit. However, we vacate and remand
the damages award because the Fund is entitled to receive reasonable
attorney's fees for pursuing this declaratory judgment action.

In the trustee-trustee litigation, the district court awarded to the
Fund $293,478.22, plus interest at the agreed-upon annual rate of
10%. In the instant declaratory judgment action against Aetna, how-
ever, the district court did not award interest, at either the market rate
or the rate awarded in the trustee-trustee case, when it awarded the
$293,478.22 judgment in favor of the Fund. This disparity between
the two awards created an inconsistency between the amount the for-
mer trustees were ordered to pay to the current trustees and the
amount Aetna was ordered to pay to the current trustees on behalf of
the former trustees. The "loss" thereby created falls on the Fund, since
it has agreed not to collect against the former trustees.

The Fund argues that it is entitled to some interest on the amount
awarded in the trustee-trustee litigation, either at the agreed rate of
10% or the market rate, citing, inter alia, 28 U.S.C. § 1961(a); United
States v. Michael Schiavone & Sons, Inc. 450 F.2d 875 (1st Cir.
1971); and Hymel v. UNC, Inc., 994 F.2d 260 (5th Cir. 1993). We
reject this argument. Because the post-judgment interest on amounts
awarded in the trustee-trustee lawsuit is pre-judgment interest with
respect to the instant declaratory judgment action, the award of inter-
est lies within the sound discretion of the trial court, see Coliseum
Cartage Company, Inc. v. Rubbermaid Statesville Inc., 975 F.2d
1022, 1026 (4th Cir. 1992). Here, given the absence of any evidence
of bad faith on the part of Aetna, we cannot conclude that the district
court abused its discretion in not awarding the pre-judgment interest
requested by the Fund.

The Fund is, however, entitled to reasonable attorney's fees
incurred pursuing its declaratory judgment. The settlement agreement
in the trustee-trustee lawsuit assigned from the former trustees to the
Fund "any and all rights of action, claims and demands [the former
trustees] may have against Aetna. . . ." J.A. at 222. Under West Vir-
ginia law, an insured who substantially prevails in any declaratory
judgment action against his insurer is entitled to recover attorneys

                     8
fees, regardless of whether the insurer acted in good faith. See Aetna
Casualty & Surety Co. v. Pitrolo, 342 S.E.2d 156 (W. Va. 1986);
Hayseeds, Inc v. State Farm Fire & Casualty , 352 S.E.2d 73 (W. Va.
1986). Since the Fund prevailed in this case, it is entitled to collect
attorney's fees, just as the former trustees would have been entitled
to receive such fees if they had pursued the matter themselves. We
remand to the district court to determine the reasonable level of attor-
neys fees to be awarded in this case in light of the factors outlined in
Marshall v. Fair, 416 S.E.2d 67 (W. Va. 1992).

III.

The district court's grant of summary judgment in favor of the
Fund is affirmed. The damages award is vacated and the case
remanded for further proceedings to determine the amount of attor-
neys fees to which the Fund is entitled under the law of West Vir-
ginia.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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