                                                                                FILED
                                                                    United States Court of Appeals
                                       PUBLISH                              Tenth Circuit

                     UNITED STATES COURT OF APPEALS                      September 4, 2013

                                                                        Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                           Clerk of Court


C.L. FRATES & COMPANY,
an Oklahoma corporation,

             Plaintiff-Appellee,

v.                                                           No. 12-6274

WESTCHESTER FIRE INSURANCE
COMPANY, a Pennsylvania corporation,

             Defendant-Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE WESTERN DISTRICT OF OKLAHOMA
                      (D.C. No. 5:11-CV-01020-L)


Thomas Rowe Kendrick, Timothy L. Martin of Durbin, Larimore & Bialick,
Oklahoma City, Oklahoma; Joseph K. Powers of Sedgwick LLP, New York,
New York, for Defendant - Appellant.

Ryan S. Wilson, Elizabeth A. Price, Michael L. Brooks of Hartzog Conger Cason &
Neville, Oklahoma City, Oklahoma, for Plaintiff - Appellee.


Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.1



1
       The Defendant has requested oral argument to clarify certain legal standards.
But in their briefs, the parties have sufficiently presented their positions on the legal
standards. As a result, the Court has decided the appeal based on the briefs. See
Tenth Cir. R. 34(a)(2)(C).
BACHARACH, Circuit Judge.


      This action involves a dispute over the interpretation of an errors-and-

omissions policy issued by Westchester Fire Insurance Company to C.L. Frates &

Company. The policy excludes coverage for claims “arising out of” bankruptcy or

insolvency.

      The dispute grew out of a stop-loss policy issued by United Re to a company

that had hired Frates as a broker. After issuance of the policy, United filed for

bankruptcy protection. When Frates learned of the bankruptcy, it investigated and

learned that United was not an insurance company, had been sued in Ohio, and had

filed bankruptcy to stall the Ohio litigation. Ultimately, Frates recommended to its

client that it move the stop-loss insurance to another insurer. The client agreed.

However, Frates had to reimburse the client for what it lost through higher

deductibles.

      Saddled with the cost of this reimbursement, Frates sued Westchester

under the errors-and-omissions policy.    In cross-motions for summary judgment,

Westchester contended that Frates’s claim “arose out of” United’s bankruptcy or

insolvency. In turn, Frates contends that the claim “arose out of” United’s deception.

The district court agreed with Frates and granted its motion for summary judgment.

In this appeal, we are asked: Could a reasonable trier of fact conclude that Frates’s

claim arose out of United’s bankruptcy or insolvency? We think so. As a result, we

reverse the award of summary judgment to Frates.

                                         -2-
                               Elements of the Decision

      In considering the award of summary judgment, we must examine the standard

applicable in the district court proceedings, the meaning of the phrase “arising out

of,” and the possible inferences that could be drawn by a rational fact-finder.

                           Standard for Summary Judgment

      To begin, we consider the summary-judgment standard.            In reviewing the

award of summary judgment, we view the evidence in the light most favorable to

Westchester. See Justice v. Crown Cork & Seal Co., Inc., 527 F.3d 1080, 1085

(10th Cir. 2008). When the evidence could lead a rational fact-finder to resolve the

dispute in favor of either party, summary judgment is improper. SCO Grp., Inc. v.

Novell, Inc., 578 F.3d 1201, 1215 (10th Cir. 2009).

                        Reasonableness of a Finding for Frates

      We must apply this standard against the backdrop of the underlying question,

the meaning of the phrase “arising out of.”       Under Oklahoma law,2 we broadly

interpret the phrase “arising out of” as requiring only some connection to the injury.

See Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 804 (10th Cir. 1998)

(interpreting Oklahoma law). Viewing the evidence in the light most favorable to

Westchester, a reasonable fact-finder could conclude that Frates’s injury had at least

some connection to United’s bankruptcy or insolvency.



2
      Both parties rely on Oklahoma law.


                                         -3-
I.    A Potential Connection to United’s Bankruptcy

      Frates’s vice-president contends that United changed insurers for reasons

unrelated to the bankruptcy. Appellant’s App. at A-105 ¶ 10. Even so, a fact-finder

could reasonably conclude that Frates’s loss bore at least some connection to

United’s bankruptcy.     After all, Frates’s investigation was prompted by news of

United’s bankruptcy and the insured referred to the bankruptcy when following

Frates’s advice to switch insurers. Id. at A-104, A-137.

II.   A Potential Connection to United’s Insolvency

      The fact-finder could also infer at least some connection between Frates’s

injury and United’s insolvency (apart from its bankruptcy). To address this part of

the exclusion, we must know what the term “insolvency” means. Under Oklahoma

law, the term “insolvency” refers to an inability to pay debts as they become due.

Illinois Ref. Co. v. Illinois Oil Co., 264 P. 904, 906 (Okla. 1928).

      With this definition of “insolvency,” a reasonable trier of fact could regard

United as insolvent. This conclusion could be supported, in part, by the stipulation

that United had filed bankruptcy to stall the Ohio lawsuit. Appellant’s App. at A-104

¶ 8. The bankruptcy filing could suggest insolvency, for “debtors do not generally

file for bankruptcy unless they are insolvent.” See Dumont v. Ford Motor Credit Co.

(In re Dumont), 581 F.3d 1104, 1116 (9th Cir. 2009). This seems to be true of

United, as it submitted bankruptcy schedules reflecting assets of $505,000 and




                                          -4-
liabilities exceeding $2,000,000. Appellant’s App. at A-90. Thus, a fact-finder could

reasonably find that United was insolvent.

      This insolvency could also be linked to Frates’s injury. Presumably, Frates did

not see United’s bankruptcy schedules.            But under the stipulated facts, Frates

ultimately learned that United had filed for bankruptcy protection. Id. at A-104 ¶ 8.

With knowledge of the bankruptcy filing, Frates could reasonably have inferred that

United was unable to pay its debts as they became due.

      The resulting question is whether United’s insolvency bore at least some

connection to Frates’s loss. A fact-finder could reasonably infer this connection from

the contentions by a Frates executive that he: (1) would not have recommended

United if he had known of its financial problems associated with the Ohio litigation,

and (2) recommended a switch in insurers in part because he questioned United’s

“financial status.”   Id. at A-105 ¶¶ 9-10.          Together, concerns about United’s

“financial problems” and “financial status” could supply the required connection

between its insolvency and Frates’s loss.

                                     Conclusion

      A fact-finder could reasonably infer that Frates’s injury arose out of United’s

bankruptcy or insolvency based on: (1) evidence that Frates’s investigation was

precipitated by news of the bankruptcy, (2) the insured’s reference to United’s

bankruptcy when following the recommendation to change insurers, and (3) the

stipulation regarding the effect of United’s financial problems on Frates’s


                                            -5-
recommendation to switch insurers. As a result, we reverse the award of summary

judgment to Frates and remand to the district court for further proceedings.




                                         -6-
