JAMES K. BREDAR, District Judge.
Appellant Zvi Guttman, Litigation Trustee for the Debtor, Railworks Corporation, appeals from the bankruptcy court's summary judgment for Appellee Construction Program Group ("CPG") in the Trustee's adversary proceeding against CPG for recovery of an avoidable preference. The matter has been fully briefed (ECF Nos. 8, 13, 18), and no hearing is required, Local Rule 105.6 (D. Md. 2011). The bankruptcy court's judgment will be vacated and the case remanded for further proceedings.
Railworks filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code on September 20, 2001. Pursuant to the confirmed plan for reorganization, a litigation trust was created, and it included claims for recovery of avoidable transfers. (RA01521.) One of those claims is at issue in this appeal.
Filed on September 16, 2003, the complaint sought to avoid several preferential transfers made by Railworks to CPG within the ninety days preceding the filing of the bankruptcy petition. The complaint alleged that CPG was a creditor of Railworks and that CPG received $2, 178, 041 in these transfers that "were to or for the benefit of the Defendant." (Bkr. Case No. 03-5363, ECF No. 1.) During the course of proceedings in the bankruptcy court, the Trustee reduced the amount sought to be recovered to $2, 113, 507, which represented four payments of insurance premiums by Railworks for various forms of insurance coverage. On appeal, the Trustee clarifies that the amount sought to be recovered from CPG is $1, 585, 130.25, which constitutes the amount of the contested transfers minus 25%; the 25% figure is comprised of commissions earned by CPG. (Appellant's Br. 5.)
The bankruptcy court rendered summary judgment for CPG, ruling that it was neither a creditor nor an entity for whose benefit the transfers were made and therefore not one from which the transfers could be recovered, denied summary judgment for the Trustee, and dismissed the complaint. (RA001518-59.) The Trustee has appealed. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(F), and this Court has appellate jurisdiction under 28 U.S.C. § 158(a)(1).
II. Undisputed Facts
CPG served as a managing general underwriter for TIG, the insurance company that provided general liability, automobile, and workers' compensation insurance coverage to Railworks. (RA01522-23.) CPG's predecessor in interest was Sherwood Insurance Services ("Sherwood") (Appellee's Br. 3-4), which was party to a General Agency Agreement ("Agreement") with TIG. The Agreement was effective December 15, 1996. (RA00705-85, RA01523.) TIG sought to employ Sherwood's "expertise in soliciting, developing, marketing, underwriting, and issuing contracts of insurance." (RA00705, preamble.) One of Sherwood's contractual duties was "to collect, receive, and account for premiums on [p]olicies." (RA00705, Sec. 1.2.b.) In Section Three of the Agreement, one of the "limitations of authority" of Sherwood was that it "shall not act as an insurer for any insureds, and this Agreement shall not be construed as an insurance policy or any contract or agreement of indemnity of insureds." (RA00706, Sec. III.4.)
In Section Five, Sherwood and TIG agreed that Sherwood " shall be liable for and shall pay to [TIG] all net premiums attributable to the [p]olicies produced hereunder, whether or not such premiums have been collected by [Sherwood] less [c]ommissions...." (RA00709, Sec. V.1 (emphasis added).) Further, the Agreement specified that all premiums collected by Sherwood were TIG's property and were to be held in trust on TIG's behalf in an account segregated from Sherwood's operational funds and that after premiums were collected and deposited into the trust account, Sherwood could then deduct from the trust account its commission. (RA00709-10, Sec. V.2.) Finally, the parties agreed the Agreement was to be "governed by and construed in accordance with the laws of the State of Texas, without regard to its rules regarding conflict of laws." (RA00717, Sec. X.5.) At some point, CPG became Sherwood's successor in interest to the Agreement and the relationship formerly between Sherwood and TIG became one between CPG and TIG; apparently, the 1996 Agreement continued to govern this relationship.
From July 20 through August 17, 2001, Railworks issued four checks payable to CPG (RA00650, -657, -664, -671) as payments of insurance premiums for policies issued by TIG through CPG (RA01522-23). CPG deposited them into CPG's trust account and, after deducting commissions due, remitted the net premiums to TIG (RA00970-72, Aff. Montero, Apr. 15, 2011). As earlier noted, Railworks's petition for reorganization was filed September 20, 2001, less than ninety days following the issuance and negotiation of these four checks.
III. Standard of Review
On appeal, this Court reviews the bankruptcy court's legal determinations de novo and its factual findings for clear error. In re Official Comm. of Unsecured for Dornier Aviation (N. Am.), Inc., 453 F.3d 225, 231 (4th Cir. 2006); Rosen v. Kore Holdings, Inc. (In re Rood), 448 B.R 149, 157 (D. Md. 2011). Each cross-motion for summary judgment is viewed separately on its own merits. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). "When considering each individual motion, the court must take care to resolve all factual disputes and any competing, rational inferences in the light most favorable' to the party opposing that motion." Id. (citation omitted). Because the bankruptcy court granted CPG's motion for summary judgment, it made no factual findings with regard to CPG's motion. In denying the Trustee's motion for summary judgment, the bankruptcy court determined a genuine dispute existed as to a material fact.
The Trustee argues that the transfers are avoidable under 11 U.S.C. § 547(b) and that they are recoverable from CPG under § 550(a). The Fourth Circuit has set forth its ...