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THE FEDERAL INSURANCE CO. v. SMITH

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Majority Opinion, supra at 7. I agree with this assessment, but believe it points to a different conclusion. The theory described is one of assumpsit, or unjust enrichment, not of conversion, and the law of unjust enrichment is well-settled in Virginia. See, e.g., Furr v. Arnold, 119 S.E.2d 242, 246 (Va. 1961) ("It is a general rule that where one man has in his hands money which, according to the rules of equity and good conscience, belongs to and ought to be paid to another, an action will lie for such money as money received by defendant to plaintiff’s use."); Robertson v. Robertson, 119 S.E. 140, 141 (Va. 1923) ("Assumpsit will lie whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obliged by natural justice and equity to refund." (citation omitted)); Shores v. Shaffer, 146 S.E.2d 190, 194-95 (Va. 1966) (same). It is under the theory of unjust enrichment that I believe this case should be categorized. Had such a claim been advanced in a timely manner and the plaintiff not run afoul of the statute of limitations, I am sure it would have been on this theory alone that the district court would have been able to find Susan liable for a much greater amount. That the plaintiff cannot recover the entire fraud loss amount on an unjust enrichment theory now does not warrant our bending the tort of con- version to the breaking point.

III.

I would award FIC only the amount recoverable on the alternative ground of unjust enrichment, not the additional amount represented by the ground of conversion. Thus, I concur in part I.A. of the major- ity opinion, but respectfully dissent as to the remainder.

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