681 F.2d 138334 UCC Rep.Serv. 270
The MERCHANTS NATIONAL BANK OF MOBILE,Plaintiff-Appellant,v.Robert H. CHING, Jr., Etc., Defendant-Appellee.
No. 81-7749.
United States Court of Appeals,Eleventh Circuit.
Aug. 6, 1982.
I. BACKGROUNDA. Facts and Proceedings BelowGallalee, Denniston & Cherniak, I. David Cherniak, William G. Jones, III,Mobile, Ala., for plaintiff-appellant.Miller Widemire, Atlanta, Ga., Charles Street, Mobile, Ala., for defendant-appellee.Appeal from the United States District Court for the Southern District of Alabama.Before GOLDBERG
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, HILL and HATCHETT, Circuit Judges.HATCHETT, Circuit Judge:1In this bankruptcy action, a bank asserted that it held a security interest incertain claims arising from a security agreement between the bank and a debtor.The district court classified the claims under the Alabama Uniform CommercialCode. In reviewing these classifications, we affirm in part, reverse in part, andremand.2Maritime Coatings, Inc. (Maritime), performed specialized sandblasting andcoating work on liquid natural gas carriers for various shipyards including
Newport News. Since its inception in 1974, Maritime and Merchants NationalBank of Mobile (Bank) maintained a debtor/creditor relationship. In return for the Bank's financing of Maritime's operations, Maritime would execute notes,security agreements, and financing statements in favor of the Bank.Outstanding at bankruptcy were four promissory notes representing the debtsthen owed by Maritime to the Bank.3Merchants National's claim of secured party status is based on a securityagreement executed by Maritime Coatings in February, 1979, on the Bank'sform entitled "Security Agreement (Accounts Receivable)" and containing,among other things, the following provisions:4"Account" means a right to payment for goods sold or leased or for servicesrendered, and includes a right to payment which has been earned under acontract right.5"Contract right" means a right to payment under a contract not yet earned by performance.6Borrower hereby grants to Bank to secure all Borrower's liabilities, a securityinterest under the Uniform Commercial Code in: (a) all accounts now ownedand hereafter acquired whether or not specifically assigned by Borrower; (b)such contract rights as Borrower may from time to time specifically assign toBank; and (c) all proceeds of such accounts and contract rights.7In the Office of the Secretary of State of the State of Alabama, Merchants National Bank duly recorded financing and continuation statements executed bythe parties, wherein Maritime Coatings was designated as the debtor, the Bank was designated as the secured party, and the collateral was described as "allaccounts and contract (sic) of Debtor, whether now or hereafter existing or acquired."8The claims pertaining to this litigation arose out of contractual relations between Maritime Coatings and Newport News. Operating under two separatecontracts with modifications, Maritime performed sandblasting and coatingwork on three ships located in Newport News's shipyard over a two and one-half year period from December, 1976, through June, 1979. The first contractcovered sandblasting and coating on hulls 609 and 610. Maritime completedthis work in June, 1979, and invoiced Newport News for the balance includingretainages due under the contract.
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In addition, various invoices claimingamounts due for rework on hull 609, the cost of renting, maintaining and
operating a forklift, and extended job costs caused by delays were prepared inconnection with this contract and are referred to as Maritime's claims 2, 3, and4 against Newport News. The second contract called for Maritime to sandblastand coat seventeen tank tops on hull 613. Maritime performed the work onthree of the tank tops and was paid. Newport News, however, performed thework on the remaining fourteen tank top units and prevented Maritime fromcompleting the contract. This act of prevention gives rise to Maritime's claimfor profits anticipated by Maritime had it completed the work and constitutesclaim 5.9In September, 1979, Merchants National Bank, as "secured creditor of MaritimeCoatings, Inc.," filed suit against Newport News in the United States DistrictCourt for the Eastern District of Virginia. The Bank alleged that it was a perfected secured creditor of Maritime on all receivables, choses in action, andcauses of action owned by Maritime against Newport News and therefore wasempowered to enforce and prosecute all of Maritime's claims against Newport News. While that lawsuit was pending, Maritime filed its involuntary bankruptcy petition in March, 1980, and the United States Bankruptcy Courtfor the Southern District of Alabama adjudicated it bankrupt. Thereafter,Merchants National Bank filed an adversary complaint seeking relief from theautomatic stay imposed by section 362(a) of the Bankruptcy Code, 11 U.S.C.A.§ 362(a) (1979). The Bank sought relief in order to continue the pendinglitigation against Newport News. In its amended complaint, Merchants Nationalrequested the bankruptcy court to determine lien priority, and sanction a proposed settlement with Newport News regarding the accounts receivable theBank was attempting to collect. During the course of the hearing on theadversary complaint, a stipulation was entered into between Newport News,Merchants National Bank, and the trustee of the estate of Maritime Coatings.The parties agreed that the value of all claims against Newport News in whichthe Bank claimed a security interest did not exceed the amount of legitimatedebt owed to the Bank by Maritime. Thus, the question of whether equity for the estate was present in the accounts receivable due and owing Maritime from Newport News was removed from the bankruptcy court's consideration, and thesole question then became the lien priority and ownership of the potentialclaims. The bankruptcy court ruled that Merchants National Bank did not hold asecurity interest in any of the claims and entered judgment for the trustee. The bankruptcy court characterized the claim for rework as an equitable right to payment for work performed over and above the contract price. This claim,according to the bankruptcy court, was neither a contract right nor an account, but a general intangible under the UCC. The claims for extended job costscaused by delays and lost profits resulting from Newport News's prevention of Maritime's performance of the contract were held to be tort claims for wrongful
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