THE FEDERAL INSURANCE CO. v. SMITH
actions involving documents in which intangible property rights have been merged, such as with a check, a promissory note, or a stock cer- tificate. See Prosser & Keeton, supra, at 91. Because the document symbolizes or embodies the right to property, the conversion of the document has been held to include conversion of the intangible rights that the document represents, and to carry damages for it. See id. However, the evolution of the tort has largely stopped with the kind of intangible rights merged in or identified with a document. In keep- ing with the scope of this evolution, Virginia has allowed conversion claims premised on documented intangible property rights. See United Leasing Corp. v. Thrift Ins. Corp., 440 S.E.2d 902, 906 (Va.
; Unlimited Screw Prods., Inc. v. Malm, 781 F.Supp. 1121, 1131
D. Va. 1991) (interpreting Virginia law). However, where the
rights at issue amount to undocumented intangible property rights — those that are not merged with a document and so cannot be physi- cally possessed — Virginia’s Supreme Court has held that they can- not be validly claimed in an action for conversion. See Thrift, 440 S.E.2d at 906 (holding that plaintiff’s undocumented intangible prop- erty rights, represented by a fraudulent stock certificate, are not sub- ject to a cause of action for conversion).
In this case, the property that Myron fraudulently obtained was rep- resented by the four checks, each of which he deposited into the joint USAA checking account he shared with his brother. Once he depos- ited the AFBA checks into the USAA account and they were paid, the fraudulently obtained orders to pay money were fulfilled and cancel- led. Thus, the original documents (the four checks) ceased to embody any intangible property rights and the funds formerly represented by the checks became part of a fungible pool of debits and credits in the bank. The funds formerly represented by the checks were not segre- gated and, in my opinion, were no longer susceptible to an action for conversion.
This is not to say that cash or negotiable instruments cannot be recovered on a theory of conversion. See, e.g., United States v. Mof- fitt, Zwerling & Kembler, P.C., 83 F.3d 660, 670 (4th Cir. 1996). So long as money is kept separate and identifiable, it can be converted. Jasen, 731 A.2d at 966; Lewis v. Fowler, 479 So.2d 725, 726 (Ala. 1985) (money must be segregated to be susceptible to an action for