Breach of Fiduciary Duty

Breach of Fiduciary Duty § 7:5
However, where the conduct of the accountant and the conduct of
the other party cause a single and indivisible harm, the accountant is
liable to the injured party for the entire harm. 201 An accountant who is
held liable for an indivisible harm might be able to obtain contribution
from the other wrongdoer. 202 However, there is no right to contribution
for a breach of fiduciary duty in a number of the states that have
adopted the Uniform Contribution Among Tortfeasors Act. 203 The
Second Circuit has concluded that an ERISA fiduciary may seek
contribution from another ERISA fiduciary even though the statute
does not expressly provide for contribution. 204 The court stated:
“There is no reason why a single fiduciary who is only partially
responsible for a loss should bear its full brunt.” 205 It reasoned that
contribution was an equitable means of apportioning wrongdoing
between ERISA fiduciaries. 206 However, the Eighth Circuit has held
that there is no right of contribution among ERISA co-fiduciaries. 207
201. See id. § 875.
202. See id. § 886A; RESTATEMENT (SECOND) OF TRUSTS § 258 (1959) (unless
breach of trust committed in bad faith).
203. See U.C.T.F.A. § 1(g), 12 U.L.A. 64 (1975); ARIZ. REV. STAT. ANN.
§ 12-2501(F)(2) (not applicable “to breaches of trust or of other fiduciary
obligation”); COLO. REV. STAT. ANN. § 13-50.5-102(7) (same); FLA. STAT.
ANN. 768.31(2)(g) (same); NEV. REV. STAT. ANN. § 17.305 (same); N.C.
GEN. STAT. § 1B-1(g) (same); OKLA. STAT. ANN. tit.12, § 832(G) (same);
S.C. CODE ANN. § 15-38-20(G) (same); TENN. CODE ANN. § 29-11-102(g)
(same); Buchbinder v. Register, 634 F.2d 327, 330 (6th Cir. 1980)
(U.C.T.F.A. not applicable to suit against accounting firm which allegedly
aided and abetted executor’s breaches of fiduciary duty); In re DeLorean
Motor Co., 65 B.R. 767, 774 (Bankr. E.D. Mich. 1986) (corporate officer
sought contribution from corporation’s accountant for alleged breach
of fiduciary duty; no right to contribution under either U.C.T.F.A. or
common law).
204. Chemung Canal Trust Co. v. Sovran Bank/Maryland, 939 F.2d 12, 18
(2d Cir. 1991), cert. denied, 112 S. Ct. 3014 (1992).
205. Id. at 16.
206. Id.
207. Travelers Cas. & Sur. Co. of Am. v. IADA Serv., Inc., 497 F.3d 862, 865–67
(8th Cir. 2007).
(Goldwasser & Arnold, Rel. #14, 10/11)
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