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Action to Collect on D&O Insurance Policy
In Wintermute v. Kansas Bankers Surety Co., No. 09-2806, an action claiming that a directors and officers (D&O) liability insurance policy obligated defendant to defend plaintiff in a criminal action brought against her, the court reversed summary judgment for defendant where 1) because the doctrine of res judicata would have foreclosed the claims plaintiff sought to add to her complaint, any amendment would have been futile; 2) looking beyond the allegations in the complaint would not result in a final adjudication requirement even though the policy contained no such requirement; and 3) missing from the facts stated in the indictment was an allegation that plaintiff received a personal gain to which she was not legally entitled.
As the court wrote: "Susan Wintermute, a former director of the Sinclair National Bank (SNB), appeals the district court's grant of summary judgment in favor of The Kansas Bankers Surety Co. (KBS) in this insurance policy dispute concerning whether a directors and officers (D & O) liability insurance policy obligated KBS to defend Wintermute in a criminal action brought against her as a director of SNB. Wintermute also appeals the district court's denial of her motion to amend the tort claim in her complaint against KBS. "