text:
    Fernando Alberto ORTEGA, Plaintiff-Appellant, v. W. CHRISTIAN, Officer, individually, and as police officer for Metro-Dade Police Department; Fred Taylor, individually as Director/Chief of Police of Metro-Dade Police Department, Metro-Dade Police Department, a political subdivision of Dade County, Florida, Defendants-Appellee.
    No. 94-5300.
    United States Court of Appeals, Eleventh Circuit.
    June 25, 1996.

      Douglas S. Lyons, Alan Goodman, Lyons and Farrar, P.A., Coral Gables, Florida, for Appellant.
    Mitchell Alexander Bierman, Dade County Attorney’s Office, Miami, FL, for Appellees.
    Before HATCHETT and BARKETT, Circuit Judges, and OAKES , Senior Circuit Judge.

       Honorable James L. Oakes, Senior U.S. Circuit Judge for the Second Circuit, sitting by designation.

   HATCHETT, Circuit Judge:

Appellant, Fernando Alberto Ortega, appeals the district court’s order granting a judgment on the pleadings in favor of appellees, Officer William Christian, Chief Fred Taylor, and the Metro-Dade Police Department on his claims for false arrest and false imprisonment under 42 U.S.C. § 1983. We reverse.

FACTS

On January 21, 1992, the Metro-Dade Police Department (MDPD) received a report of a robbery and kidnapping. On January 23, 1992, a confidential informant informed the MDPD and Officer Christian that an organized group of which he was a member committed the robbery. The informant stated that he knew the member who committed the robbery, provided the address of the alleged robber’s residence, and proceeded with Christian to that address. That address belonged to Ortega’s brother.

Upon arrival at the address, the informant identified Ortega and his brother as the men who committed the robbery. Christian immediately arrested both men and searched the residence. Ortega proclaimed his innocence and requested an opportunity to prove a case of mistaken identity. Christian refused to comply with Ortega’s request and failed to make any inquiries into the claims of innocence. The MDPD held Ortega in custody for five months without bond until Ortega’s bond hearing on June 3, 1992. At the bond hearing, the court ordered the release of Ortega from custody.

The victim of the robbery never identified Ortega as the person who committed the robbery. Ortega, however, repeatedly proclaimed his innocence and demanded an opportunity to appear in a line-up or a photo spread. The MDPD scheduled and cancelled Ortega for a line-up or photo spread on three separate occasions — April 24, April 30, and May 14 — during the five months of his incarceration.

PROCEDURAL HISTORY

On April 22,1994, Ortega filed a complaint in the state courts against Officer William Christian, in his individual capacity, Chief Fred Taylor, in his individual capacity, and the Metro-Dade Police Department, seeking damages pursuant to 42 U.S.C. § 1983 and common law on claims of false arrest and false imprisonment. The appellees-defendants removed the case from state court to federal court. Accepting as true the facts presented in Ortega’s complaint, the appellees filed a motion for judgment on the pleadings. After a time extension, Ortega filed a memorandum in opposition to appellees’ motion for judgment on the pleadings. The district court granted appellees’ motion for judgment on the pleadings finding that probable cause existed to arrest Ortega; therefore, Ortega could not prevail on a false arrest claim under common law or section 1983. Additionally, the district court held that Ortega’s false imprisonment claim, which was predicated on the false arrest claim, failed under common law and section 1983. Ortega filed a timely motion for reconsideration of the order, which the district court denied.

CONTENTIONS

Ortega contends that Christian lacked probable cause to arrest him because Christian had no information that could have led him to believe that Ortega participated in the robbery, or lived at the address that the informant provided. Next, Ortega contends that his detention, which followed the unlawful arrest, violated his constitutional rights under section 1983, and that his false arrest claim is separate and distinct from his false imprisonment claim.

Appellees, on the other hand, argue that the facts alleged in the complaint show that Christian had probable cause to arrest Ortega and that probable cause is a complete defense to both Ortega’s false arrest and false imprisonment claims.

ISSUES

The issues we address are: (1) whether Christian had probable cause to arrest Ortega and (2) whether Ortega’s detention constituted a false imprisonment.

DISCUSSION

The district court granted appellees’ motions for judgment on the pleadings against Ortega and denied Ortega’s motion for reconsideration. The district court found that Christian had probable cause to arrest Ortega, thus, precluding Ortega’s false arrest and imprisonment claims under section 1983. Judgment on the pleadings is proper when no issues of material fact exist, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 12(c). When reviewing a judgment on the pleadings, we accept the facts in the complaint as true and view them in the light most favorable to the nonmoving party. Swerdloff v. Miami National Bank, 584 F.2d 54, 57 (5th Cir.1978); General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir.1989). Accordingly, a judgment on the pleadings is a decision on the merits, and we review it de novo. General Conference Corp., 887 F.2d at 230.

A. False Arrest

A warrantless arrest without probable cause violates the Fourth Amendment and forms a basis for a section 1983 claim. Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th Cir.1990). An arrest made with probable cause, however, constitutes an absolute bar to a section 1983 action for false arrest. Marx, 905 F.2d at 1505. Probable cause to arrest exists if the facts and circumstances within the officer’s knowledge, of which he has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed or is committing an offense. Marx, 905 F.2d at 1505. Probable cause does not require overwhelmingly convincing evidence, but only “reasonably trustworthy information.” Marx, 905 F.2d at 1506 (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964)). In this case, we must determine whether a reasonable officer in the same circumstances and possessing the same knowledge as Christian could have believed that probable cause existed to arrest Ortega for the suspected robbery. Pickens v. Hollowell, 59 F.3d 1203, 1206 (11th Cir.1995).

As a basis for a finding of probable cause, Christian relied on information from a confidential informant identifying the perpetrator of a crime. Ortega argues that informant information alone cannot sufficiently support a finding of probable cause. In determining whether an informant’s tip rises to the level of probable cause, we assess the totality of the circumstances. United States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir.1992); United States v. Campbell, 920 F.2d 793, 796-97 (11th Cir.1991). We consider the relevance of factors such as the informant’s “veracity,” “reliability,” and “basis of knowledge.” Gonzalez, 969 F.2d at 1003 (citing Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983)). In addition, the corroboration of the details of an informant’s tip through independent police work adds significant value to the probable cause analysis. Gonzalez, 969 F.2d at 1003.

In this case, we find that the informant’s tip lacked essential elements that would have given Christian probable cause to believe Ortega participated in the robbery. Appellees argue that the information Christian received from the informant established probable cause because the informant made statements against his penal interests and as a member of the gang had personal knowledge of the perpetrators. First, making a statement against one’s penal interests without more will not raise an informant’s tip to the level of probable cause required under the Fourth Amendment. United States v. Martin, 615 F.2d 318, 325 (5th Cir.1980). Second, no evidence in the complaint demonstrates a past history between the informant and Christian or the MDPD, which could lend support for the informant’s veracity and reliability. Third, although the informant admitted having membership in the gang, no evidence shows that the informant actually knew Ortega, that Ortega belonged to the gang, that a gang existed, or that Ortega participated in the commission of the crime. United States v. Reyes, 792 F.2d 536, 539 (5th Cir.1986) (“an informant’s tip is buttressed [through] the fact that it is based on his own personal observation rather than hearsay”). Lastly, the complaint does not reveal that Christian took any independent steps to investigate the informant’s tip or had any evidence prior to arresting Ortega which would have corroborated the informant’s identification of Ortega as a perpetrator in the commission of the crime. Gonzalez, 969 F.2d at 1003; see also Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960) (an officer “may rely upon information received through an informant ... so long as the informant’s statement is reasonably corroborated [through] other matters within the officer’s knowledge.”).

For the foregoing reasons, we hold that Christian lacked probable cause to arrest and detain Ortega. Cf. Swint v. City of Wadley, 51 F.3d 988, 996-98 (11th Cir.1995) (probable cause to arrest and detain one suspect does not extend to another person in mere propinquity to that suspect). We also hold that Ortega has pleaded a valid false arrest claim under section 1983 against Christian. We dismiss, however, the false arrest claims against Taylor and the MDPD. Taylor and the MDPD cannot be held liable for the unreasonable actions that Christian, the arresting officer, pursued. No evidence exists here that indicates Taylor or the MDPD approved of Christian’s decision to arrest based on the limited information he possessed. Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir.1996) (“A city may be held responsible where the authorized policymakers ‘approve a subordinate’s decision and basis for it.’”); Cannon v. Macon County, 1 F.3d 1558, 1565 (“it is difficult to see how the Sheriff would have final authority over who each deputy arrest and whether a deputy has probable cause to arrest and/or hold arrestee” (quoting Cannon v. Macon County, 90V-1132-E (Dec. 19, 1990))).

B. False Imprisonment of Ortega

Because we have already determined that Christian lacked probable cause to arrest Ortega, we now hold that Ortega’s detention pursuant to that arrest constituted false imprisonment under section 1983.

A detention on the basis of a false arrest presents a viable section 1983 action. Reeves v. City of Jackson, 608 F.2d 644 (5th Cir.1979) (section 1983 claims for false arrest and false imprisonment presented where, without probable cause, officers arrested and detained stroke victim in belief he was intoxicated); see also Cannon, 1 F.3d at 1562 (“a detention on the basis of misidentification may present a viable section 1983 claim”). A false imprisonment claim under section 1983 is based on the protection of the Fourteenth Amendment against deprivations of liberty without due process of law. Baker v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689, 2693-94, 61 L.Ed.2d 433 (1979). Where a police officer lacks probable cause to make an arrest, the arrestee has a claim under section 1983 for false imprisonment based on a detention pursuant to that arrest. Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir.1995). This false imprisonment claim under section 1983 is grounded in the Fourth Amendment’s guarantee against unreasonable seizures. Groman, 47 F.3d at 636; see also Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 868-69, 43 L.Ed.2d 54 (1975) (The Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention of a prisoner arrested upon information filed by the state prosecutor). Additionally, we note that, under certain circumstances, a detention following a valid arrest may present a viable section 1983 claim where the detainee protests the detention on the basis of misidentification. Cannon, 1 F.3d at 1562 (citing Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2694-95, 61 L.Ed.2d 433 (1979)).

Under section 1983, Ortega must meet the elements of common law false imprisonment and establish that the imprisonment resulted in a violation of due process rights under the Fourteenth Amendment. Cannon, 1 F.3d at 1562-63 (citing Douthit v. Jones, 619 F.2d 527 (5th Cir.1980). The complaint contains facts that satisfy the section 1983 standard for false imprisonment. The complaint demonstrates that as a result of the unlawful arrest, appellees detained Ortega for five months without conducting a line-up or affording other opportunities for him to prove his innocence. Ortega had a constitutional right to be free from detention where the circumstances and facts under Christian’s consideration demonstrated that Christian clearly lacked probable cause to make an arrest. Cannon, 1 F.3d at 1563. In light of the sparse information Christian had when he made the arrest, Christian knew or should have known that the imprisonment of Ortega may have constituted an unlawful imprisonment under section 1983 in violation of the Fourteenth Amendment. Cannon, 1 F.3d at 1563.

From the facts and law in this case, we hold that Ortega has pleaded a valid false imprisonment claim under § 1983 against Christian. As to the claim against Taylor and the MDPD, we cannot determine from the facts as set forth in the complaint whether those parties are subject to section 1983 liability for Ortega’s detention. Although Ortega simply makes “boilerplate allegations” about those parties’ involvement, we remain uncertain about all of the circumstances surrounding Ortega’s five month detention. Sivard v. Pulaski County, 959 F.2d 662, 668-669 (7th Cir.1992). We believe that Ortega’s vague allegations sufficiently state a cause of action requiring further proceedings to fully develop the record. Sivard, 959 F.2d at 668. Accordingly, we hold that Taylor and the MDPD are not entitled to judgment as a matter of law at the pleadings stage on the false imprisonment claim under section 1988. Swint, 51 F.3d at 999-1000; Swerdloff, 584 F.2d at 60; Sivard, 959 F.2d at 668-69 (reversing summary judgment because of the “inexplicable nature of [plaintiffs] detention”).

C. Qualified Immunity and Ortega’s Section 1983 Claims

Due to the posture of the case, the district court did not discuss qualified immunity. Consequently, that issue is not ripe for our review.

CONCLUSION

For the foregoing reasons, we conclude that Ortega pleaded valid claims of false arrest and false imprisonment under section 1983 against Christian. We affirm the dismissal of the false arrest claim against Taylor and the MDPD and remand the false imprisonment claim under section 1983 against Taylor and the MDPD for further proceedings.

REVERSED AND REMANDED.

      . The Eleventh Circuit adopts as binding precedent, all decisions which the former Fifth Circuit made prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).

      . Ortega must prove (1) intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm.


source: Caselaw Access Project

author: HATCHETT, Circuit Judge:

license: Public Domain

text:
    CITY OF DELRAY BEACH, FLORIDA, Plaintiff-Counter Defendant-Appellant, Lawrence A. Razette, John J. Razette, Intervenor-Plaintiffs, v. AGRICULTURAL INSURANCE CO., Mission Insurance Co., Mission National Insurance Co., Mission American Insurance Co., Aetna Casualty & Surety Co., Hartford Accident and Indemnity Co., Century Indemnity Company, Continental Insurance Company, Pacific Employers Insurance Co., American Centennial Insurance Co., Universal Security Insurance Co., Mutual Fire, Marine & Inland Insurance Co., Defendants-Intervenor Defendants-Appellees, Illinois Insurance Exchange, Transco Syndicate # 1, Ltd., Defendants-Intervenor-Defendants Counter-Claimants-Appellees.
    No. 95-4284.
    United States Court of Appeals, Eleventh Circuit.
    June 25, 1996.
    Steven R. Berger, Berger & Chafetz, Miami, FL, for appellant.
    Linda B. Foster, Neely & Player, Atlanta, GA, Bradford A. Thomas, Miami, FL, Dennis M. Flannexy, Nancy L. Manzer, Wilmer, Cutler & Pickering, Washington, DC, Paul L. Nettleton, Miami, FL, Barry S. Bendetowies, Bradley Fischer, Ft. Lauderdale, FL, Carl D. Motes, Tallahassee, FL, for Aetna Casualty-
    William A. Posey, Keating, Muething & Klekamp, Cincinnati, OH, Edward R. Nicklaus, Coral Gables, FL, William R. Wicks, James W. McCready, Coral Gables, FL, for Transco & Illinois Ins.
    William S. Daskam, Tampa, FL, for Continental Ins.
    Ignatius Melito, New York City, for Hartford.

      Before HATCHETT, Circuit Judge, FAY, Senior Circuit Judge, and WOOD , Senior Circuit Judge.

       Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation.

   HATCHETT, Circuit Judge:

We affirm for all the reasons stated in the district court’s order dated September 9, 1994, granting summary judgment in favor of the appellees and against the City of Delray Beach. We attach the order as an “Appendix.”

APPENDIX

CITY OF DELRAY BEACH, Plaintiff, v. AGRICULTURAL INSURANCE COMPANY, MISSION INSURANCE COMPANY, AETNA CASUALTY AND SURETY COMPANY, HARTFORD ACCIDENT AND INDEMNITY COMPANY, ILLINOIS INSURANCE EXCHANGE, CALIFORNIA INSURANCE COMPANY, CONTINENTAL INSURANCE COMPANY, PACIFIC EMPLOYERS INSURANCE COMPANY, AMERICAN CENTENNIAL INSURANCE COMPANY, UNIVERSAL SECURITY INSURANCE COMPANY, MUTUAL FIRE, MARINE & INLAND INSURANCE COMPANY, AND TRANSCO SYNDICATE # 1, LTD., Defendants.

CASE NO. 91-8281-CIV-MARCUS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

ORDER

THIS CAUSE comes before the Court upon (1) Defendant Transco Syndicate #1, Ltd. and Illinois Insurance Exchange’s (collectively “Transco Syndicate”) motion for summary judgment, filed July 6, 1992; and (2) California Union Insurance Company’s

(“California Union”) motion for summary judgment, filed on November 18,1993. As to the first motion, United States Magistrate Judge Stephen T. Brown, upon an order of reference, issued a Report and Recommendation on September 27, 1993, recommending that Transco Syndicate’s motion for summary judgment be granted. Plaintiff, the City of Delray Beach, timely filed an objection to the Report and Recommendation. Among a number of issues raised in the motions, the parties present the following issue of first impression under Florida law: whether the “personal injury endorsements” contained in the Defendants’ comprehensive general insurance policies provide coverage for the environmental contamination that occurred in this case. For the reasons that follow, we conclude, as a matter of law, that the moving parties’ CGL policies do not provide such coverage under Florida law. Accordingly, Transco Syndicate’s motion for summary judgment is GRANTED and California Union Insurance Company’s motion for summary judgment is GRANTED.

I.

The factual and procedural background of the motions for summary judgment filed in this matter are not in dispute. On April 21, 1988, in a separate action, the City of Delray Beach brought suit in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, against a number of defendants for allegedly polluting the city’s water supply. See City of Delray Beach v. Aero-Dri Corp., et al., Case No. 88-3672-AJ. It appears that the Defendants failed to dispose of their waste solvents at a proper disposal facility and polluted the ground water through the discharge of those solvents. The City of Delray Beach alleged a continuous and systematic pattern of improper waste disposal and contamination of the city’s drinking water. A jury returned a verdict in the case for the City in the amount of $8,697,488.00 for past and future compensatory damages.

The City of Delray Beach now brings this cause of action against numerous insurers, alleging that these insurance companies provided various amounts of coverage to the defendants in the underlying state court action. Three of the defendant insurance companies here have filed motions for summary judgment arguing that as a matter of law their insurance policies do not provide coverage for the cause of action in the underlying state case. Defendants Transco Syndicate # 1, Ltd., and Illinois Insurance Exchange jointly wrote three commercial general liability insurance policies insuring two of the defendants in the underlying state court action: (1) Policy # DOL02250, providing primary coverage of $500,000 for the period of October 1, 1985 through October 1, 1986; (2) Policy #DOL07567, providing primary coverage of $1,000,000 for the period of October 1, 1986 through October 1, 1987; and (8) Policy # DOL104251, providing excess coverage of $1,000,000 for the period of October 1, 1987, through October 1, 1988. California Union issued one policy that is at issue in this case, Policy No. 2204 EPO 01287, providing coverage for a policy period from October 1,1987 through October 1,1988.

Transco Syndicate and California Union have filed separate motions for summary judgment asking this Court to find, as a matter of law, that they do not owe any coverage under the above-stated insurance policies to the City of Delray Beach for liability incurred by the defendants in the underlying state court action. In short, the insurance companies argue that the “pollution exclusion clauses” contained in their respective comprehensive general liability insurance policies preclude coverage to their insureds for any liability for the environmental contamination that occurred in this case. Plaintiff has responded that Transco Syndicate and California Union are liable on the following independent grounds: (1) the pollution exclusion clauses contained in the comprehensive general liability insurance policies do not preclude coverage to the insureds for the environmental contamination that occurred in this ease; and (2) that even if the pollution exclusion clauses do generally preclude coverage, the insurance companies separately owe coverage under “personal injury endorsements” contained in each of the policies.

Procedurally, this Court referred Transco Syndicate’s motion for summary judgment to United States Magistrate Judge Stephen T. Brown for a Report and Recommendation. Based upon the Supreme Court of Florida’s recent ruling in Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Insurance Corp., 636 So.2d 700 (Fla.1993), reh’g denied, March 31, 1994, the Magistrate Judge issued a Report and Recommendation in which he recommended that the motion for summary judgment be granted in favor of the Defendants as to both theories of recovery that the Plaintiff had asserted. We now consider both motions for summary judgment together.

II.

The standard to be applied in reviewing summary judgment motions is stated unambiguously in Rule 56(c) of the Federal Rules of Civil Procedure:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

It may be entered only where there is no genuine issue of material fact. Moreover, the moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

In applying this standard, the Eleventh Circuit has explained:

In assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608; [Environmental Defense Fund v.] Marsh, 651 F.2d [983] at 991 [(5th Cir.1981)]. All reasonable doubts about the facts should be resolved in favor of the non-movant. Casey Enterprises v. Am. Hardware Mutual Ins. Co., 655 F.2d 598, 602 (5th Cir.1981). If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial. Marsh, 651 F.2d at 991; Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir.1969). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. Lighting Fixture & Elec. Supply Co., 420 F.2d at 1213. If reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment. Impossible Electronic [Techniques, Inc. v. Wackenhut Protective Systems, Inc.], 669 F.2d [1026] at 1031 [(5th Cir.1982)]. Croley v. Matson Navigation Co., 434 F.2d 73, 75 (5th Cir.1970).
Moreover, the party opposing a motion for summary judgment need not respond to it with any affidavits or other evidence unless and until the movant has properly supported the motion with sufficient evidence. Adickes v. S.H. Kress & Co., 398 U.S. at 160, 90 S.Ct. at 1609-10; Marsh, 651 F.2d at 991. The moving party must demonstrate that the facts underlying all the relevant legal questions raised by the pleadings or otherwise are not in dispute, or else summary judgment will be denied notwithstanding that the non-moving party has introduced no evidence whatsoever. Brunswick Corp. v. Vineberg, 370 F.2d 605, 611-12 (5th Cir.1967). See Dalke v. Upjohn Co., 555 F.2d 245, 248-49 (9th Cir.1977).

Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1368-69 (11th Cir.1982); see also Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1502 (11th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986).

The United States Supreme Court has recently provided significant additional guidance as to the evidentiary standard which trial courts should apply in ruling on a motion for summary judgment:

[The summary judgment] standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Brady v. Southern R. Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Court in Anderson further stated that “[t]he mere existence of a scintilla of evidence in support of the position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Id at 252, 106 S.Ct. at 2512. In determining whether this evidentiary threshold has been met, the trial court “must view the evidence presented through the prism of the substantive evidentiary burden” applicable to the particular cause of action before it. Id at 254, 106 S.Ct. at 2513. If the nonmovant in a summary judgment action fails to adduce evidence which would be sufficient, when viewed in a light most favorable to the non-movant, to support a jury finding for the non-movant, summary judgment may be granted. Id at 254-55, 106 S.Ct. at 2513-14.

In another recent case, the Supreme Court has declared that a non-moving party’s failure to prove an essential element of a claim renders all factual disputes as to that claim immaterial and requires the granting of summary judgment:

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

III.

A.

Under Florida law, a number of general rules govern our interpretation of the insurance policies in question, particularly as to whether any ambiguities exist in the policies’ language. To begin, where the essential facts of the case are not in dispute, it is appropriate for the district court to interpret an insurance contract to determine whether any ambiguities exist as to coverage as a matter of law. Gulf Tampa Drydock Co. v. Great Atlantic Ins. Co., 757 F.2d 1172, 1174 (11th Cir.1985) (applying Florida law) (determined on motion for summary judgment); Jones v. Utica Mut. Ins. Co., 463 So.2d 1153 (Fla.1985) (interpretation of policy appropriate where no dispute over the facts). An “ambiguity” exists in an insurance policy only when a term or provision in that policy is susceptible to two or more differing, reasonable interpretations — one resulting in coverage and one resulting in exclusion. Dahl-Eimers v. Mutual of Omaha Life Ins. Co., 986 F.2d 1379, 1381 (11th Cir.1993) (applying Florida law) (citing Weldon v. All Am. Life Ins. Co., 605 So.2d 911, 915 (Fla. 2d DCA 1992)).

Furthermore, this Court must interpret the provisions at issue in an insurance policy in the context of the entire policy. As the Eleventh Circuit has observed:

[i]n Florida, a court must construe every insurance contract according to the entirety of its terms and conditions. A court should construe each sentence in connection with other provisions of the policy to arrive at a reasonable construction that accomplishes the intended purpose of the parties. Haenal v. United States Fidelity & Guar. Co., 88 So.2d 888 (Fla.1956).

International Ins. Co. v. Johns, 874 F.2d 1447, 1456 (11th Cir.1989); see also Reid v. State Farm Fire & Casualty Co., 352 So.2d 1172 (Fla.1977).

In determining whether an ambiguity exists, we are to assess first the natural or plain meaning of the policy language in dispute. Dahl-Eimers, 986 F.2d at 1382 (citing Landress Auto Wrecking Co. v. United States Fidelity & Guar. Co., 696 F.2d 1290, 1292 (11th Cir.1983) (applying Florida law)). Although an insurance contract may often be a complex instrument, it does not follow that an analysis of that contract conducted in order to fully comprehend its meaning implies any ambiguity. Alpha Therapeutic Corp. v. St. Paul Fire & Marine Ins. Co., 890 F.2d 368, 370 (11th Cir.1989) (citing State Farm Fire & Casualty Co. v. Oliveras, 441 So.2d 175, 178 (Fla. 4th DCA 1983)). It is true that an ambiguity, when found, is to be construed strictly in favor of the insured. Rigel v. National Casualty Co., 76 So.2d 285, 286 (Fla.1954). However, where no ambiguity exists, the court is restricted from creating one through the addition of a meaning which is not present in the terms of the policy. Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938 (Fla.1979).

B.

The first issue raised in the motions for summary judgment is whether or not, as a matter of law, the “pollution exclusion clauses” contained in the comprehensive general liability insurance policies of the two Defendants preclude coverage to their insureds for liability for the environmental contamination that occurred in this case. While this issue was hotly contested in Florida as recently as eighteen months ago, the Supreme Court of Florida has now essentially resolved it in favor of the insurer.

This issue of whether coverage exists under the bodily injury or property damage provisions of a comprehensive general liability policy has been difficult for courts around the country to decide, and perhaps none more so than the Supreme Court of Florida. Originally, in Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Insurance Co., No. 78, 293, 1992 WL 212008 (Fla. September 3, 1992), the Court, in a 4-3 vote, held that the 1973 CGL pollution exclusion clause did not preclude coverage for liability arising out of environmental contamination as a matter of law. This decision essentially offered the following three holdings: (1) the term “sudden and accidental” as used in the pollution exclusion is susceptible to more than one meaning, including “abrupt and immediate” and “unexpected and unintended”; (2) divergence among jurisdictions in the construction of the pollution exclusion clause was indicative of the ambiguity inherent in the exclusion; and, (3) the drafting history of the pollution exclusion clause cut in favor of finding coverage (due in large part to misrepresentations allegedly made to Florida’s Insurance Commissioner at the time that it was submitted for approval with the State). Id.

However, in July of 1993, the Supreme Court of Florida withdrew the earlier opinion and reversed its position in Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Insurance Co., 636 So.2d 700 (Fla.1993), to conclude that as a matter of law the pollution exclusion clause precludes coverage for environmental contamination liability. In this opinion, the Supreme Court of Florida essentially held the following: (1) the drafting history of the pollution exclusion clause has support on both sides and does not resolve the issue; and (2) the term “sudden and accidental” is not ambiguous — “[a]s expressed in the pollution exclusion clause, the word sudden means abrupt and unexpected.” Id. at 703-706. As the Court concluded:

In the final analysis, we construe this policy to mean that (1) basic coverage arises from the occurrence of unintended damages, but (2) such damages as arise from the discharge of various pollutants are excluded from basic coverage, except that (3) damages arising from the discharge of these pollutants will fall within the coverage of the policy where such discharge is sudden and accidental.

Id. at 705 (citing Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153 (4th Cir.), cert. denied, 506 U.S. 824, 113 S.Ct. 78, 121 L.Ed.2d 42 (1992)).

While six of the seven Justices held to the same position as in the original opinion, Justice Grimes reversed his stance to favor the argument that the pollution exclusion clause precludes coverage for environmental damages liability. Justice Grimes wrote a concurrence that, in full, states:

I originally concurred with the position of the dissenters in this case. I have now become convinced that I relied too much on what was said to be the drafting history of the pollution exclusion clause and perhaps subconsciously upon the social premise that I would rather have insurance companies cover these losses rather than parties such as Dimmitt who did not actually cause the pollution damage. In so doing, I departed from the basic rule of interpretation that language should be given its plain and ordinary meaning. Try as I will, I cannot wrench the words “sudden and accidental” to mean “gradual and accidental,” which must be done in order to provide coverage in this case.

Id. at 706 (Grimes, J., concurring).

Based upon this newer opinion in Dimmitt Chevrolet, Magistrate Judge Brown recommends that the motions for summary judgment be granted as to the issue of the bodily injury and property damage provisions. Specifically, the Magistrate Judge recommended that “[gjiven the plain and ordinary meaning of the exclusions in these policies, it was clearly the intent of the parties to exclude coverage for the cause of action in the underlying litigation.” Rep. & Rec., p. 6. Recognizing that there are a number of differences in the language of the various pollution exclusion clauses used by Transeo Syndicate and California Union, the Magistrate Judge further observed:

The plaintiff, utilizing supreme lawyer ingenuity attempts to create an ambiguity by pointing out that each of the clauses contains different words. The issue is not the words used, but rather their meaning. One of us may say that six plus one equals seven. Another of us may say five plus two equals seven. Yet a third may say four plus three equals seven. We have all reached the same conclusion traveling different paths. It is insignificant to this court that merely because different words were used there must be an ambiguity here, somewhere. Furthermore, the issue is not whether this is an absolute exclusion, but whether it is clear and [unambiguous that the exclusionary clauses herein intended to eliminate coverage for the activities alleged in the underlying action.

Id. at 6-7.

In both its objection to the Magistrate Judge’s Report and Recommendation concerning the Transco policies and in response to California Union’s motion for summary judgment, Plaintiff concedes the difficulty of the position it takes. For instance, in its response to California Union’s motion for summary judgment, Plaintiff states:

Obviously, the Plaintiff is bound to recognize the status of Florida law to the extent that Florida law controls the outcome of the instant litigation. Although the City of Delray Beach does not agree with the [Florida] Supreme Court’s opinion on rehearing, and believes that the original opinion should have remained applicable, the Plaintiff must accept the current state of the law on that issue as the Florida Supreme Court has decided it.

Pltff.’s Resp. to Cal. Union’s Mot. Summ.Judgm. at 2.

We agree fully with the position of the Magistrate Judge (and the concession on the part of Plaintiff) as to the issue of coverage under the bodily injury and property damages provisions of the comprehensive general liability policies: the Supreme Court of Florida has laid the issue to rest in Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Insurance Co., 636 So.2d 700 (Fla.1993). Accordingly, on this particular issue, the motions for summary judgment filed by Transco Syndicate and California Union are GRANTED.

C.

Accordingly, we turn to the issue on which the parties focus their attention, the issue of whether the “personal injury endorsements” contained in the Defendants’ comprehensive general insurance policies provide coverage for the environmental contamination that occurred in this ease.

The issue can be presented most clearly by using one of the insurance policies at issue as an example. In particular, we focus on the policy that all of the parties agree creates the greatest possibility of coverage in this matter: Transco Syndicate’s Policy # DOL02250. Exclusion S of that policy, the “pollution exclusion” clause, provides:

This insurance does not apply to bodily injury or property damage arising out of the discharge, disbursal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water.

The “personal injury endorsement” reads:

“Personal Injury” means injury arising out of one or more of the following offenses committed during the policy period
1. false arrest, detention, imprisonment, or malicious prosecution;
2. wrongful entry or eviction or other invasion of the right of private occupancy;
3. a publication or utterance
(a) of a libel or slander or other defamatory or disparaging material, or
(b) in violation of an individual’s right of privacy, except publications or utterances in the course of or related to advertising, broadcasting, publishing or telecasting activities conducted by or on behalf of the named insured shall not be deemed personal injury.

By its terms, the pollution exclusion clause does not apply to coverage under the personal injury endorsement, but only to “bodily injury” or “property damage” coverage. Therefore, if the personal injury endorsement insures against the risk of environmental contamination, then the pollution exclusion clause will not negate that coverage. In order for the defendant insurer to be liable under the personal injury endorsement, however, the actions on which the underlying claims against the insureds are based must constitute one or more of the listed offenses.

Unlike a general insurance policy, where coverage is stated in very broad terms and subject to clearly defined exceptions (as is the case in the bodily injury and property damage coverage of defendants’ policies), the personal injury coverage is ‘buil[t] from the ground up and affords coverage only for defined risks.’

County of Columbia v. Continental Ins. Co., 189 A.D.2d 391, 595 N.Y.S.2d 988, 991 (1993) (quoting Martin v. Brunzelle, 699 F.Supp. 167, 171 (N.D.Ill.1988)), aff'd, 83 N.Y.2d 618, 612 N.Y.S.2d 345, 634 N.E.2d 946 (1994). The plaintiffs argue that the insureds’ failure to properly dispose of waste solvents and subsequent pollution of drinking waters comprises a “wrongful entry or eviction or other invasion of the right of private occupancy.” We disagree.

First, the listed offenses under paragraph two of the personal injury endorsement require an interference with private occupancy. Both “wrongful entry” and “eviction” imply an interference with possessory rights. County of Columbia v. Continental Ins. Co., 595 N.Y.S.2d at 991; Barry R. Ostrager, Special Insurance Coverage Issues Arising Out of Hazardous Waste/Environmental Clean-Up Litigation, in Handbook on Insurance Coverage Disputes § 10.05 (5th ed. 1992). Where, as here, no intent to occupy the property has been shown, and indeed no interference with possession has occurred, there can be neither wrongful entry nor eviction. Plaintiffs analysis requires that the term “other invasion of the right to private occupancy” lack such a requirement. However,

[ujnder the doctrine of “ejusdem generis,” when an enumeration of specific things is followed by some more general word or phrase, then the general word or phrase will usually be construed to refer to things of the same kind or species as those specifically enumerated. This doctrine is actually an application of the broader maxim “noscitur a sociis” which means that general and specific words capable of analogous meaning when associated together take color from each other so that the general words are restricted to a sense analogous to the specific words.

Thomas v. City of Crescent City, 503 So.2d 1299, n. 2 (Fla. 5th DCA 1987). Thus, when read in context, the phrase “other invasion of the right of private occupancy” means an offense tantamount to wrongful entry or eviction and requires an impingement upon possessory rights. Therefore, the environmental damage at issue in this ease does not amount to any of the listed offenses under the personal injury endorsement.

Second, the enumerated offenses under the personal injury endorsement all relate to the violation of private rights. Here, there is no indication that the insureds are “threatened with liability for interfering with property owners’ or occupants’ rights of private occupancy.” Harrow Products, Inc. v. Liberty Mut. Ins. Co., 833 F.Supp. 1239, 1246 (W.D.Mich.1993). Because there is no charge against the insureds by a private occupant of the city’s water supply, there can be no “invasion of the right of private occupancy.” See id. Plaintiff urges this Court to consider the decision in City of Edgerton v. General Casualty Co., 172 Wis.2d 518, 493 N.W.2d 768 (Ct.App.1992), rev’d in part on other grounds, 184 Wis.2d 750, 517 N.W.2d 463 (1994). In Edgerton, the Wisconsin Court of Appeals found coverage for a similar pollution of water supplies under an identical personal injury endorsement. However, the Wisconsin courts have been more receptive to finding environmental contamination coverage by insurance carriers than have the Florida courts. Compare Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Co., 636 So.2d 700 (Fla.1993) (holding that the expression “sudden and accidental” in a pollution exclusion clause is unambiguous and conveys a temporal element), with Just v. Land Reclamation, Ltd., 155 Wis.2d 737, 456 N.W.2d 570 (1990) (holding that the phrase “sudden and accidental” in a pollution exclusion clause has no temporal requirement). Furthermore, the court of appeals in Edgerton relied on a Wisconsin statute for its conclusion that private occupancy rights existed in the public water supply. 493 N.W.2d at 781. Thus, this Court is not convinced that Edgerton is persuasive with respect to Florida law.

Moreover, this Court finds itself bound by the straightforward mandate of Leek v. Reliance Insurance Co., 486 So.2d 701 (Fla. 4th DCA 1986). The circumstances of that case neatly parallel those in the present action. In that ease, the Leeks were sued for property damages after they hired a service to cut the tops of a neighbor’s trees which dropped pine needles onto the Leeks’ property. The Leeks then filed a third party complaint for coverage against their insurer. The policies at issue provided coverage for property damage, but contained the following exclusion: “We will not pay for property damage: b. caused intentionally by any insured who is 13 years of age or older....” Id. at 703. In addition, the policies included coverage for personal injury, defined, in relevant part, as: “invasion of privacy, wrongful eviction or wrongful entry....” Id. “The complaint against the Leeks specifically alleged both trespass and wrongful entry. Nonetheless, the court held that the Leeks were not covered under their policy, stating:

Had this been an action for injury arising out of an insured tortious act; namely, wrongful entry, we would [] have been compelled to reverse here____
But it is not a claim for personal injury, raising echoes of the old saw that if my aunt were a man, she would be my uncle. Nowhere in the [first insurer’s] policy is there any language, with respect to damage to the property of others, which would neutralize the specific exclusion for intentional acts of the insured which occasion damage to others’ property. Similarly, the [second insurer’s] policy insures against injury; and as its counsel argues in his brief:
“Simply put, one cannot ‘injure’ property any more than one can ‘damage’ a person.”
Stated another way by [second insurer’s] counsel at oral argument, personal injury is injury to a person.

Id. at 704. Similarly, in this case, neither is there an exception to remove the damage in this action from the pollution exclusion clauses in these policies, nor can this environmental damage be considered personal injury.

Finally, as we have stated, we “must construe every insurance contract according to the entirety of its terms and conditions.” International Ins. Co. v. Johns, 874 F.2d at 1456. In addition, this Court agrees with the reasoning in Titan Corp. v. Aetna Casualty and Surety Co., 22 Cal.App.4th 457, 27 Cal.Rptr.2d 476 (1994), that no clause should be interpreted in a manner which eviscerates any other provision. Id. at 485-86. The analysis urged by Plaintiffs would result in precisely such a negation of the pollution exclusion clauses contained in these policies. The type of environmental contamination present in this case would fall squarely within the coverage for property damage in this policy were it not expressly excepted by the pollution exclusion. Stretching the personal injury endorsement to cover risks specifically insured under the property damage provisions would essentially render the pollution exclusion meaningless. Id.; County of Columbia v. Continental Ins. Co., 595 N.Y.S.2d at 991; O’Brien Energy Sys. v. American Employers’ Ins. Co., 427 Pa.Super. 456, 629 A.2d 957 (1993), appeal denied, 537 Pa. 633, 642 A.2d 487 (1994).

The resolution of the many issues surrounding insurance coverage for pollution-related environmental contamination has effected a sharp division among the courts around this nation. Despite the desire to shift the costs of clean-up to the deep pockets of insurers, the Florida courts have shown reluctance to distort the plain language and structure of insurance policies and the intentions of the parties contracting for insurance coverage. See Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Co., 636 So.2d at 706 (Grimes, J., concurring). Accordingly, we agree with the interpretation of personal injury coverage offered by the court in Titan Corp. v. Aetna Casualty & Surety Co., 27 Cal.Rptr.2d at 486. Relying on Leek v. Reliance Insurance Co., 486 So.2d 701 (Fla. 4th DCA 1986), the Titan court “interpreted] the coverage afforded by the personal injury portion of the policy as being limited to damages other than the injury to realty which an occupier of land may suffer when his quiet enjoyment of occupancy is disturbed.” Titan, 27 Cal.Rptr.2d at 486. Therefore, as a matter of law, this personal injury endorsement will not cover the environmental contamination presented in this case. Accordingly, with respect to Transco Syndicate’s Policy # DOL02250, the motion for summary judgment filed by Transco Syndicate is GRANTED.

D.

Also at stake in this litigation for Transco Syndicate are two additional policies issued to the insureds covering the time period from October 1,1986, through October 1,1988. In addition, a single policy was issued to the insureds by California Union covering the period from October 1, 1987 to October 1, 1988. These remaining three policies are susceptible to the same analysis given with respect to Transco Syndicate’s Policy #DOL02250. The second policy issued by Transco Syndicate (Policy # DOL07567) and the California Union policy (Policy #2204 EPO 01287) use the same definition of personal injury. The relevant portion provides coverage for injury due to “[wjrongful entry into, or eviction of a person from, a room, dwelling or premises that the person occupies” — a more limited definition with regard to wrongful entry-type offenses than that given in Transco Syndicate’s Policy # DOL02250. Even in a leading case finding coverage under policy language identical to that in Transco Syndicate’s Policy #DOL02250, the court found no duty to indemnify for damage from pollutants under language identical to that found in these two policies. See Titan Holdings Syndicate v. City of Keene, 898 F.2d 265, 272 (1st Cir.1990). Again, the offenses of wrongful entry and eviction cannot be inflated to reach the acts of pollution present in this case; the damages complained of are not personal injuries, and this Court will not interpret these insurance contracts in such a way that the pollution exclusion clauses are rendered meaningless. Therefore, as a matter of law, the insurers owe no coverage with respect to these personal injury endorsements.

Finally, the third policy issued to the insureds by Transco Syndicate (Policy #DOL104251) contains a blanket pollution exclusion pertaining to all coverage — including personal injury:

ABSOLUTE POLLUTION EXCLUSION SUPERSEDING AND REPLACING ANY AND ALL PROVISIONS TO THE CONTRARY.
Regardless of any provision of this policy or of any applicable underlying policies of insurance it is understood and agreed that: the policy shall not apply to any liability arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon the land, the atmosphere or any water course or body of water, whether such discharge is sudden, accidental, or otherwise, (emphasis added).

Thus, as a matter of law, regardless of the coverage provided in the personal injury endorsement, liability for the environmental contamination present in this case will fall within the pollution exclusion, and no coverage exists under this policy for this environmental damage. See Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp., 636 So.2d 700. Accordingly, with respect to Transco Syndicate’s policies #DOL104251 and # DOL07567 and California Union’s Policy # 2204 EPO 01287, the motions for summary judgment filed by Transco Syndicate and California Union are GRANTED.

Accordingly, it is hereby ORDERED and ADJUDGED that Defendant Transco Syndicate’s motion for summary judgment is GRANTED, and Defendant California Union’s motion for summary judgment is GRANTED. Defendants Transco Syndicate and California Union shall submit proposed orders for final summary judgment within ten (10) days from the date of this Order.

DONE AND ORDERED in Miami, this 9th day of September, 1994.

/s/ Stanley Marcus

STANLEY MARCUS

UNITED STATES DISTRICT JUDGE

      . In reversing this decision in part, the Wisconsin Supreme Court explicitly declined to decide the personal injury issue as unnecessary to their holding. As Plaintiff asserts, the court of appeals' opinion remains the sole statement of Wisconsin law on the personal injury question. Pl.’s Notice of Subsequent Case History, at 2. However, the Wisconsin Supreme Court opinion roundly criticizes the approach taken by the court of appeals, leaving doubt as to the Wisconsin Supreme Court's view of the personal injury portion of the decision rendered by the lower court.

      . In addition, one Florida trial court considering the personal injury issue did find that personal injury coverage will not include environmental damage. In Florida Department of Environmental Regulation v. Chemairspray, Inc., No. 85-5527 (Fla.Cir.Ct. May 23, 1994), the court, relying on Leek v. Reliance Insurance Co., 486 So.2d 701 (Fla. 4th DCA 1986), held that pollution damage could not fit within coverage for personal injury. While we recognize that this decision is merely persuasive, it is indicative of the Florida courts' receptiveness to such claims for coverage.

      . The opinion in this case has been followed and its reasoning commended in Staefa Control-System, Inc. v. St. Paul Fire & Marine Insurance Co., 847 F.Supp. 1460, 1474 (N.D.Cal.1994) (Patel, J.).


author: GODBOLD, Senior Circuit Judge:

text:
    Frederick D. LEDBETTER, Plaintiff-Appellant, v. FIRST STATE BANK & TRUST COMPANY, Trustee, Defendant-Appellee.
    No. 95-8396.
    United States Court of Appeals, Eleventh Circuit.
    June 25, 1996.

      Marc T. Treadwell, Christopher D. Balch, Chambless, Higdon & Carson, Macon, GA, for Appellant.
    H. Holcombe Perry, Perry, Walters & Lippitt, Albany, GA, John T. Marshall, William G. Leonard, Powell, Goldstein, Frazer & Murphy, Atlanta, GA, for Appellee.
    Before BIRCH, Circuit Judge, GODBOLD, Senior Circuit Judge, and O’KELLEY , District Judge.

       Honorable William C. O'Kelley, U.S. District Judge for the Northern District of Georgia, sitting by designation.

   GODBOLD, Senior Circuit Judge:

Frederick D. Ledbetter is the beneficiary of a written, revocable trust, of which he is also the trustor, and First State Bank and Trust Company is the trustee. The bank, located in Georgia, is a wholly owned subsidiary of First State Corporation (“FSC”), a two-bank holding company. The bank, as trustee for plaintiff, owns less than %% of 1% of the outstanding stock of FSC. Considering other trusts for a number of plaintiffs relatives, the bank owns nearly 40% of the holding company’s outstanding stock, although it has the power to vote only 6% to 8%.

Plaintiff sued the bank, alleging that as trustee for him it had numerous conflicts of interest and that in several respects it violated duties owed to him as trust beneficiary by acting or failing to act in his interest.

The district court found that the bank had conflicting interests. Nevertheless it granted summary judgment to the bank. We reverse.

I. Plaintiffs claims

Plaintiff makes four major claims:

(1) That the bank as trustee failed to “encourage, prompt, and if necessary join with other shareholders” of FSC to require FSC to engage in discussions with a bank holding company interested in merging with or purchasing FSC. The management of the defendant bank and of FSC — principal officers and directors — is substantially common. FSC has maintained an anti-merger policy directed at keeping FSC and its two subsidiary banks independent. Representatives of First Alabama Bancshares, Inc., a bank holding company, met with Morgan Murphy and Douglas Wren, who are the senior officers of FSC and the bank, and explored the possible advantages of a merger or sale between FSC and First Alabama. First Alabama was told that FSC was not interested. Subsequently First Alabama confirmed in a letter to Murphy its interest in a merger and what First Alabama saw as the benefits of a merger. No formal offer was made by First Alabama.

Plaintiff contended in the district court that the substantial minority of FSC stock held by the bank in various trusts for members of his family, including plaintiff, gave the bank as trustee power to influence the actions of FSC for the benefit of trust beneficiaries, and that negotiations with First Alabama would have led to benefits to plaintiff and other trust beneficiaries. According to plaintiff, the possibilities of sale or merger of FSC were not communicated to, or not fully communicated to, or were falsely communicated to, the bank and its trust committee. The trust committee was never consulted or informed of the First Alabama approach and never considered it. Additionally, though the bank’s principal officers and directors knew of the First Alabama approach and FSC’s rejection, they took no action to have the bank as trustee consider the matter on behalf of the beneficiaries whose trusts held FSC stock.

(2) Pursuant to authority of its management, which was essentially common with that of the bank, FSC made a public offering of its treasury stock, the effect of which, plaintiff contends, was to dilute the value of FSC’s stock held in plaintiffs trust and to diminish the voting power of the bank as trustee of plaintiffs trust. Plaintiff asserts that FSC’s offering of its treasury stock was motivated by a desire to dilute the interests of trust beneficiaries (and other holders of FSC stock) and thereby strengthen FSC’s anti-merger strategy, and that the bank as trustee acted disloyally because it made no effort to stop the FSC offering.

(3) After plaintiff filed this suit the bank immediately transferred to plaintiff all FSC stock held by it in his trust but continued to hold other assets in his trust. Shortly thereafter it resigned as trustee. Plaintiff contends that these acts by the trustee were taken without regard to his interests as beneficiary and that the resignation was intended to deprive him of standing to pursue this suit.

(4) Payments made to the bank’s principal officers by FSC violated Georgia law.

We hold that summary judgment was improperly granted on all four claims.

II. Breach of the duty of undivided loyalty

The foremost duty which a fiduciary owes to its beneficiary is undivided loyalty. Clark v. Clark, 167 Ga. 1, 144 S.E. 787 (1928); Fulton Nat’l Bank v. Tate, 363 F.2d 562 (5th Cir.1966). Accord, Comptroller’s Handbook for National Trust Examiners, July 1984, p. 1. If trustee places itself in a position where its interests might conflict with the interests of the beneficiary, the law presumes that the trustee acted disloyally; inquiry into such matters as whether the transaction was fair is foreclosed and the burden shifts to the trustee to show it received no benefit. It is not necessary for the beneficiary to show that the fiduciary acted in bad faith, gained advantage, fair or unfair, or that the beneficiary was harmed. Fulton Nat’l Bank, 363 F.2d at 571-72. The defendant, bank’s policy manual acknowledges that the bank owes a duty of undivided loyalty to the beneficiaries of the trusts that it manages. In Clark v. Clark the Supreme Court of Georgia discussed the duty of undivided loyalty.

As long as the confidential relation lasts, the trustee owes an undivided duty to the beneficiary under the trust, and cannot place himself in a position which would subject himself to conflicting duties, or expose him to the temptation of acting contrary to the best interests of the cestui que trustent. 3 Pomeroy’s Equity Jurisprudence, § 1077. Beneficiaries of a trust are entitled to have it administered by trustees entirely at the service of the trust and above suspicion. Crummey v. Murray, 130 Misc.Rep. 378, 224 N.Y.S. 49 [(1927)]. The purpose of this rule is to require a trustee to maintain a position where his every act is above suspicion, and the trust estate, and it alone, can receive, not only his best services, but his unbiased and uninfluenced judgment. Whenever he acts otherwise, or when he has placed himself in a position that his personal interest has or may come in conflict with his duties as trustee, or the interests of the beneficiaries whom he represents, a court of equity never hesitates to remove him. In such circumstances the court does not stop to inquire whether the transactions complained of were fair or unfair; the inquiry stops when such relation is disclosed.

Clark, 144 S.E. at 789.

The defendant bank was in a position of obvious and pervasive conflicts of interest. It is a wholly owned subsidiary of FSC. As trustee it owns nearly 40% of FSC stock. The district court recognized that a conflict of interest arose from the bank’s holding in trust stock of its parent. The bank’s trust department manual recognizes this conflict. A trustee’s ownership of its own stock, unless consented to or waived, is inconsistent with the rule of undivided loyalty. The rule of undivided loyalty in this situation is based upon the possibility that circumstances may arise in which the trustee and its officers and directors are in a position when determining whether to sell or retain the stock they cannot appraise the problem with the same detachment with which they approach the sale of other securities. IIA Austin W. Scott & William F. Fratcher, The Law of Trusts § 170.15, p. 369; Comptroller’s Handbook, p. 3. As the district court noted, the rule is no different when the stock owned is that of an affiliated corporation. The trustee may be tempted to favor itself or the affiliate. See Albright v. Jefferson County Nat’l Bank, 292 N.Y. 31, 53 N.E.2d 753, 151 A.L.R. 897 (N.Y.1944). The question is not whether the trastee and the affiliated corporation are separate legal entities but whether the trustee has placed itself in a position where its interests, or the interests of its affiliate, may conflict with its duties to its beneficiaries, The wholly owned subsidiary-parent relation with common management is the paradigm of affiliation.

Connection between the bank and FSC reached far beyond ownership of stock. Management of the two corporations is overlapping and interlocking. The summary judgment evidence discloses that the bank and the holding company are tightly bound together by a web of overlapping duties, responsibilities, and relationships, by cross-assignment of principal officers and directors of the bank and of FSC, and of members of the trust committee of the bank, and by compensation of principal officers. At times relevant to this ease Morgan Murphy was chairman of the board, president, and chief executive officer of FSC and chairman of the board and chief executive officer of the bank. Douglas Wren was president and chief operating officer of the bank and executive vice president and chief operating officer of FSC. Both served on FSC’s executive committee which also served as the compensation committee. Both served on the bank’s trust committee. The head of the bank’s trust department served on the trust committee and was a director of the bank and of FSC. The other members of the trust committee were FSC directors. Two members of the trust committee served on FSC’s executive committee. Bank officers, including Murphy and Wren, were compensated directly by FSC, not by the bank, and the bank in turn paid FSC a management fee.

Thus, the bank’s conflicts of interest that exist because of these relationships run far more broadly and more pervasively — and affect the issues in this case to a much greater extent — than corporate trustee A owning stock in corporation B.

III. The claim arising from the First Alabama approach

The First Alabama approach was not to the bank but to FSC. It originated with members of plaintiffs family who are shareholders of FSC. Wishing to see FSC merged with some other banking entity, they approached First Alabama with the suggestion for discussion. FSC was committed to a non-merger policy. It considered this to be in the best interests of stockholders, employees, and the area of South Georgia in which it operated. On behalf of FSC, and as a courtesy to the family members who had approached First Alabama, Murphy and Wren met one time with representatives of First Alabama. They told First Alabama that FSC was not interested. First Alabama followed up with a letter to Murphy, as chief executive officer of FSC, expressing continuing interest and describing possible benefits of a merger, and stating the hope of additional meetings.

Murphy reported the First Alabama approach to a meeting of the FSC board. A director expressed dissatisfaction that the First Alabama approach had originated with a stockholder rather than the board. Murphy considered that he had been reprimanded for talking with First Alabama and told the board he would “stay the course” with the mandate that FSC remain independent. Later an attorney for FSC talked with an officer of First Alabama who told him that First Alabama made no offer, would not make one unless solicited, and would not be interested without active support from FSC management. But, if FSC ever wanted to sell, First Alabama would be interested. There the First Alabama matter ended.

The First Alabama matter was not presented to the bank for its consideration as trustee, although its principal officers and directors knew of it since they were officers and board members of FSC. There is evidence that Murphy did not fully inform the trust committee of the level of First Alabama’s interest. At least some committee members never saw the First Alabama follow-up letter. The matter was never presented to the trust committee for its consideration, though that committee is said to make all significant decisions concerning trusts and the interests of beneficiaries of trusts. Indeed, the common management of FSC and the trustee bank, in testimony and in the bank’s contentions on this appeal, do not understand, or do not recognize their duties with respect to trust beneficiaries. Rather they assert that there is such identity of interests that action taken on behalf of FSC meets trust law requirements of the bank’s duty of loyalty to beneficiaries. Murphy testified — and the bank argues on appeal — that once officers and directors act, wearing their FSC hats, the matter is ended. All responsibility to the bank as trustee and to trust beneficiaries is discharged, so that trust beneficiaries have suffered no harm. The bank asserts that the interests of a trust beneficiary whose trust holds FSC stock are identical to the interests of a non-trust shareholder of FSC. It says that officers and directors of FSC acted to benefit all shareholders when they turned aside the First Alabama proposal. As the bank puts it, since all FSC shareholders had the same interests, beneficiaries of trusts owning FSC stock have nothing of which to complain. Plaintiffs expert witness Ken C. Coker, an experienced former trust officer, described this viewpoint of the bank as “grossly improper.”

The bank makes a second contention based upon identity of personnel, i.e., it was unnecessary for the trust committee of the bank to consider the First Alabama proposal because FSC and the bank have common directors, and trust committee members are FSC directors, so it would have been fruitless for them as committee members to reconsider what they had already rejected as directors of FSC. The necessity for independent consideration, as an implementation of undivided loyalty, is brushed off by the defendant as “smoke and mirrors.”

Also, there is evidence that some of the officers and directors of the bank are unfamiliar with the obligations placed upon them by trust law in general and conflicts of interest in particular, and by the bank’s own policies concerning trusts as reflected in its manual. Some were unaware of a trustee’s duty of undivided loyalty. Murphy had never seen the trust department’s manual of policies and procedures and did not know of any written procedures addressing conflicts between the interests of trusts and the interests of FSC. It appears that, in the bank’s transactions with FSC, the trust committee never independently examined the interests of beneficiaries of trusts holding FSC stock.

Expert witness Coker testified that a merger could jeopardize the positions and salaries of Murphy and Wren. In Clark v. Clark trustees voted stock held by them in trust to elect them as corporate officers and to pay themselves handsome salaries. The stock depreciated in value and the beneficiaries sued to charge them with the loss. The Georgia Supreme Court held:

They are not in a position to impartially consider and decide this question [whether to sell the stock and reinvest]. Their duties as trustees and their individual interests conflict. If this stock were sold, the defendants would or might lose their offices in this corporation and the emoluments thereof, which are considerable and substantial. The retention of this stock by the defendants is their only means by which the defendant Clark can be secure of his position of president of the Sutherland Manufacturing Company, and its prerequisites. These defendants may be possessed of sufficient ability to postpone interest to duty, but by the imperative interdict of the law they are forbidden to incur the hazard of the temptation. Elias v. Schweyer, 17 Misc.Rep. 707, 40 N.Y.S. 906, 908 [(1896)]. The defendants, by electing themselves to these offices in this company, and by accepting salaries as such, have placed themselves in a position whereby their personal interests may come directly in conflict with, and, to a certain extent, antagonistic to their duties as trustees. It is not necessary to determine that they have acted in bad faith, or that they have received from the corporation sums in excess of what their services were reasonably worth.

Clark, 144 S.E. at 790. With particular respect to the First Alabama approach, Coker testified that the bank’s trust committee should have obtained legal independent counsel and advice on behalf of the interests of beneficiaries of trusts holding FSC stock. FSC knew there was shareholder interest favoring a merger. Murphy testified that he would not consider permitting the trust committee to obtain independent advice with respect to a transaction that might involve a conflict between the bank as trustee and FSC. And, in this appeal, the bank scoffs at obtaining outside counsel to consider the interests of beneficiaries as a waste of shareholders’ money.

We have considered whether as a matter of law the trustee breached its duty of loyalty by failing to “encourage, prompt, and if necessary join with other stockholders” of FSC to require FSC to engage in discussion with First Alabama. Plaintiff does not contend in this suit that there must be a merger with First Alabama. What he does assert is that the bank breached its fiduciary duty by not encouraging, prompting or joining with others to require FSC, which maintained a no-merger policy, to negotiate with First Alabama.

It cannot be said that the matter of whether the parent should consider a proposed merger was not a matter of interest to beneficiaries of the bank as trustee. Murphy conceded in his testimony that the bank as trustee should make a determination of whether a proposed merger would be in the best interests of a trust beneficiary, and if the bank thought it was not in the beneficiary’s best interest it should voice opposition to it and vote against it. The district court recognized that a trustee authorized to retain stock may be required to dispose of it in consequence of a merger.

Trustees who are directed or authorized by the terms of their trusts to retain existing investments in corporate stock may be under a duty to dispose of these investments if, as a consequence of mergers or acquisitions, the essences of the underlying enterprises are transformed. 76 Am.Jr.2d, Trusts § 510. When evaluating whether the shares of a new enterprise are equivalent to the original investment one should compare, inter alia, the old and new corporations’ spheres of activity and capital structures. Hirsh v. Hirsh, 209 Va. 630, 634, 166 S.E.2d 286, 288-89 (1969).

Ledbetter v. First State Bank & Trust Co., No. CA-93-124-1-ALB/AMER(DF), at 4 (M.D.Ga. March 14, 1995).

In the present case there is no proposed merger, only proposed negotiations and a rebuff by a parent maintaining a no-merger policy. We cannot say as a matter of law that the bank did or did not violate its fiduciary duty. Whether it acted properly in maintaining a no-merger policy and rebuffing First Alabama as an implementation of that policy, and whether the bank should have acted to consider the interests of trust beneficiaries, are matters for a factfinder. Among the considerations implicated are conditions in the industry and in the community that might make no-merger the best policy for the bank, or an acceptable policy, or catastrophic; asserted reasons for the policy and for the decision not to negotiate; the definite versus inchoate nature of the First Alabama approach; the possible motivation of officers and directors who might wish to maintain their salaries and positions. As with other issues, discussed below, the burden was upon the trustee having adverse interests to prove that it did not act in bad faith, or for improper motives, and that it did not obtain benefits.

We turn to presumptions and burden of proof. The district court considered that paragraph 10 of the trust agreement required only that the defendant not act unreasonably and that the burden of proving unreasonableness was upon plaintiff. Paragraph 10 provides:

(10) Without in any way limiting the authority vested in TRUSTEE with respect to the handling and management of trust property, it is, nevertheless, TRUSTOR’S preference and it is hereby expressed to be his personal preference that the TRUSTEE retain any corporate stock, partnership interest or other interest which forms a part of the trust property in which other descendants of TRUSTOR’S grandfather, W.B. Haley, or any one or more of them, own a controlling or a substantial amount of stock or interest. If notwithstanding the foregoing, TRUSTEE determines that it should sell any part or all of such stock or interest, then it is very likely that the best market for such stock or interest may be any one or more of the other descendants of W.B. Haley or affiliates thereof.

Revocable Trust of Frederick D. Ledbetter at 4-5. Paragraph 9 provides that the trustee may not sell any asset- having a fair market value exceeding $5,000 without prior written approval of the trustor.

The bank contends that paragraph 10 is a plenary waiver of the trustee’s duty of undivided loyalty. That position cannot be sustained. When plaintiff and the bank were negotiating a trust agreement the bank’s draft included these plenary provisions:

Trustor has the utmost confidence in the First State Bank and Trust Company and its affiliates, and he expressly relieves Trustee from any and all restrictions or claims of self-dealing or undivided loyalty that may arise hereunder.
******
In carrying out the foregoing, TRUSTOR expressly relieves TRUSTEE from any liability in connection therewith and expressly waives any requirements or restrictions relative to self-dealing or undivided loyalty-
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[W]ithout limitation, the Trustee shall have all the powers that it may choose, in its sole discretion, to exercise, notwithstanding statutory or legal restrictions applicable to fiduciaries to the contrary ... all of which powers may be exercised without any order from or permission of any court.

R 3-76-5. Plaintiff rejected these provisions, and paragraph 10 appeared in the executed agreement.

A trustee may not hold in trust its own stock (or stock of an affiliate) unless given authority to do so. The principles applicable to the trustee’s retention of its own stock apply to retention of holding parent company stock. A beneficiary may, however, authorize the trustee to retain as an investment its own stock (or the stock of an affiliate) received from the trustor. Without authority to retain ownership the trustee must sell within a reasonable time. IIA Scott, § 170.15, at p. 371. Paragraph 10 is a waiver of the rule of undivided loyalty with respect to retaining as an investment FSC stock received from plaintiff as trustor. It is not a plenary waiver of the duty of undivided loyalty as that duty relates to future events and occurrences that are beyond the scope of mere authorized retention. Retain title to stock received from the grantor the trustee may do. Misuse or abuse its ownership the trustee may not do. Plaintiff does not complain of the trustee’s retaining ownership but of alleged wrongs committed by the trustee as authorized holder of title. A trustee given authority to retain stock received from the trustor must not act in bad faith or abuse its discretion.

Even where the trustee has discretion, however, the court will not permit him to abuse the discretion. This ordinarily means that so long as he acts not only in good faith and from proper motives, but also within the bounds of a reasonable judgment, the court will not interfere; but the court will interfere when he acts outside the bounds of a reasonable judgment.

Ill Scott, § 187, at p. 14. No matter how broad the language of the trust instrument may be in conferring discretion upon the trustee, he will never be permitted to act dishonestly or in bad faith. Id. § 187.4, at p. 44. Even if the trustee does not act in bad faith the court will interfere where he acts from an improper motive. Id. § 187.5, at p. 46. The fact that the trustee has an interest conflicting with that of the beneficiary is a circumstance that the court may properly consider in determining whether the trustee is acting from an improper motive in the exercise of a discretionary power. Id. § 187.5, at p. 47.

Additionally, the district court erred in construing paragraph 10 to require the bank to act “reasonably,” which is not the standard of duty for a trustee having an adverse interest, and it incorrectly placed the burden of proof upon plaintiff. The burden was upon the bank to show that it did not act dishonorably or in bad faith or for improper motives and that it did not benefit from its actions and inactions.

These principles preclude the entry of summary judgment for defendant on the First Alabama claim.

IV. The sale of FSC treasury stock

FSC proposed to sell about 88,000 shares of its stock held in trusts for which the bank was trustee, including plaintiffs trust. Some, if not all, of the shares were to be purchased by officers and directors of the bank and of FSC. Plaintiff and others consented but withdrew their consent after securing legal counsel, and the proposal was cancelled. Quickly thereafter FSC sold 100,-000 shares of its treasury stock in a public offering. The bank asserts that the objects of the offering were to broaden ownership of its stock, increase public trading, and to serve as a “mandate” to rebuff potential purchasers of FSC. Plaintiff contends that there was no legitimate purpose, that the motive to chill any possible purchase or merger was improper, that the sale diluted his interest as represented by the shares in his trust, that his interests had to be considered, and that the bank failed to make any effort to stop the offering.

Murphy testified that FSC did not consider the interests of trust beneficiaries in the sale of FSC treasury stock but rather was “taking stock public” to enhance the value to all shareholders. He could not say whether the trust committee of the bank — of which he was a member — ever discussed or considered the matter.

For the reasons we have discussed we hold, with respect to the sale of treasury stock, that the failure of the bank to consider and assert the interests of beneficiaries of trusts owning FSC stock was a breach of the bank’s fiduciary duty as a matter of law. This was a firm and defined transaction, and the responsibility to beneficiaries was clear. The trustee’s obligation of undivided loyalty to plaintiff was not eliminated by the fact that dilution of his interests, measured statistically, was not great, or that the decision may have been a reasonable pursuit of FSC’s desire for self-preservation, or the argument that after the treasury stock was sold the market value of plaintiffs stock increased.

V. The resignation by the trustee

Plaintiff has not asked that the bank should be removed as trustee. Rather he says that he wants the bank to continue as trustee and to comply with its fiduciary obligations. For example, he says that other members of his family own FSC stock, and should a merger be proposed that is in the interests of trust beneficiaries, the bank, as his trustee, can join with other family-member shareholders to support the merger (and possibly to control a decision). Also, he asserts that the value of his FSC stock was enhanced when held in conjunction with FSC shares owned by other trusts.

Four days after plaintiff filed this suit the trust officer, in a knee-jerk reaction, sent him a certificate for the FSC stock held in his trust and invited him to consider revoking the trust. Instead plaintiff promptly amended his complaint to charge that returning the stock was a breach of trust and was intended to prevent him from asserting the claims that had been made in his original complaint by depriving him of standing. The bank then resigned as trustee.

The complaint was not amended to allege that the bank breached its obligations by resigning. However, we consider this issue because it was tried by consent — presented by the parties in the district court and decided by it, and presented to us on appeal. Coker testified that the return of the stock and the resignation violated the trust agreement, the bank’s policy manual, and commonly accepted principles in the industry. The district court held that the resignation was not inappropriate, because the trust agreement authorized the bank to resign or revoke the trust on 30 days notice, and the trustee, accused of acting disloyally, had acted appropriately to relieve the situation. And, the court added, in view of the differences between the parties, if asked, it would have permitted the bank to resign.

A trustee may not relieve itself of its role or its duties merely because it wishes to. It may resign with permission of a proper court, or with the consent of the beneficiaries, or in accordance with the terms of the trust agreement. II Scott, § 106, at p. 96.

The power to resign, like other discretionary powers possessed by a trustee with conflicts of interest, must be exercised in good faith, for proper motives, and within the bounds of proper business judgment, and the burden of proof rests on the trustee. The bank could have sought permission of a court to resign pursuant to O.C.G.A. § 53-12-175, citing disagreement between the beneficiary and the trustee, but it did not do so. A petition to the court would have to be served on the beneficiary, and it would have to be shown, presumably after an opportunity by the beneficiary to be heard, that the resignation would not be disadvantageous to the trust. O.C.G.A. § 53-12-175(a)(3)(F).

Plaintiffs claim that the trustee resigned for improper motives and without regard to his interests could not be disposed of by summary judgment.

VI. Compensation to bank officers

The salaries of Murphy and Wren and two other principal officers of the bank are paid by FSC. The bank pays FSC a management fee. This is explained on the ground that the officers provide service for the bank and FSC (and thus for the other subsidiary bank). So that all entities can fairly share in the compensation of those officers they are paid by FSC, and the subsidiaries pay management fees to FSC, which in turn pays the officers.

Plaintiff contends these payments by FSC to the bank officers violate O.C.G.A. § 53-6-151, which we set out in the margin.

Subsection (d) points out that the statute was enacted to permit extra compensation to be paid to a trustee for “business management and advisory services” without having to apply to the probate court for approval of extra compensation for extraordinary services as otherwise would be required by § 53-6-150.

The position of the bank is, first, that this claim is a “nonsensical” attack on ordinary salaries paid to bank officers and on a bank’s power to set the salaries of its officers. To the contrary, the claim questions salaries paid to officers of a trustee bank by a corporate affiliate whose stock the trustee holds in trust. Second, the bank says that the compensation paid by FSC is paid to the individual officers of the corporate trustee, not to the trustee itself. But this argument runs afoul of the corporate veil. Are the officers of the bank to be considered as the bank? Does the benefit to the trustee of being relieved from having to pay salary to its officers, a benefit conferred by the affiliate, violate common law trust principles? Third, the bank says that § 53-6-151 does not apply because the corporate trustee performs no service to FSC of a management, executive, or business advisory nature. Again, this encounters the corporate veil issue. Does the bank perform services for FSC when its principal officers and directors do — indeed they are FSC’s senior management. Or, putting it another way, in this case does the difference matter? Additionally, the bank says that these officers had no duties relating to plaintiffs trust. Even if this is relevant, it is wrong. Both are members of the trust committee.

The bank’s position exposes it to an additional question. If the compensation paid by FSC to the bank’s officers is not “extra payment” required to be authorized pursuant to § 53-6-151 is it payment for “non-extra” managerial services performed in violation of common law trust principles that, because of conflict of interest, a trustee may not serve as an officer of, or receive compensation from, a corporation whose stock the trustee holds?

Murphy testified that he had no understanding one way or the other whether a trustee could receive compensation from a corporation in which the trust owns stock. The trust committee never considered whether bank officers could properly receive compensation from the holding company.

The compensation issue could not be disposed of by summary judgment.

VII. Remedies

The question of remedy for any claim found to have merit is for the district court. By statute Georgia specifically provides for numerous alternative causes of action and remedies, statutory and common law, for breaches of trust. O.C.G.A. §§ 53-12-191, 53-12-192, 53-12-193. We do not hold or imply that plaintiff can prove compensatory damages or that he is entitled to punitive damages or to any particular remedy or form of relief. These are district court issues. We do hold, however, that uncertainties of proving damages are not elements in determining whether a breach of trust has been committed.

REVERSED and REMANDED.

      . Now affiliated with Regions Bank.

      . Defendant is not a national bank. The Comptroller’s Handbook is, however, a reliable authority in the banking industry.

      . Murphy was a voting member of the compensation committee but changed to nonvoting status pursuant to a recommendation made in connection with an offering of stock discussed below.

      . 53-6-151. Compensation of resident executor or trustee by corporation or business enterprise for rendition of certain services; execution and approval of contract.
      (a)Any executor of a decedent resident of this state and any trustee resident in this state may receive compensation for services, as specified in this subsection, from a corporation or other business enterprise, where the estate of the decedent or the trust estate owns an interest in the corporation or other business enterprise, provided that:
      (1) The services provided by the fiduciary to the corporation or other business enterprise are of a managerial, executive, or business advisory nature;
      (2) The compensation received for the services is reasonable; and
      (3) The services are performed and the fiduciary is paid pursuant to a contract executed by the fiduciary and the corporation or business enterprise, which contract is approved by a majority of those members of the board of directors or other similar governing authority of the corporation or business enterprise who are not officers or employees of the fiduciary and are not related to the fiduciary and provided the contract is approved by the judge of the probate court of the county in which the administration proceeding is pending or which is the situs of the trust.
      (b) Any executor receiving compensation from a corporation or other business enterprise for services to it as described in subsection (a) of this Code section shall not receive extra compensation in respect to such services for extraordinary service as provided in Code Section 53-6-150; provided, however, that nothing contained in this Code section shall prohibit the receipt by the fiduciary of extra compensation for extraordinary services rendered in respect to other assets or matters involving the estate or trust.
      (c) Nothing in this Code section shall prohibit the receipt by executors and trustees of normal commissions and compensation for the usual services performed by executors and trustees pursuant to law or pursuant to any fee agreement executed by the testator or settlor.
      (d) The purpose of this Code section is to enable additional compensation to be paid to executors and trustees for business management and advisory services to corporations and business enterprises pursuant to contract, without the necessity of making application for extra compensation for extraordinary services rendered pursuant to Code Section 53-6-150.