Kesselman v. National Bank of Arizona
In Kesselman v. National Bank of Arizona, 188 Ariz. 419, 421-23, 937 P.2d 341, 343-45 (App. 1996) the Court held that a bank has no duty for purposes of a negligence claim to report alleged defalcations or check kiting by one of its customers to a third party which was not a customer of the bank even if the bank was aware that the misconduct might harm the third party.
The Court explained that in some cases, a duty to disclose might arise if there was a previous definite fiduciary relationship between the bank and the third party, one or each of the parties to the contract expressly reposed trust and confidence in the other, or where the contract or transaction is intrinsically fiduciary and calls for perfect good faith. Id. at 422, 937 P.2d at 344.
Even under one of those exceptions, special circumstances would have to arise to overcome the interest of client confidentiality including that the bank had actual knowledge that its customer committed fraud, in which case it must disclose financial information. Id.
However, we further clarified the actual knowledge condition is premised on some relationship between the bank and the third party involving the transactions at issue. Id. at 423, 937 P.2d at 345.
Accordingly, the Court held that National Bank of Arizona had no duty to disclose the alleged check kiting of its customer, a title insurance company, even though it knew of the misconduct and knew the title company was acting as an escrow company and had a fiduciary relationship with others. Id. at 424, 937 P.2d 346.
As the Court further explained, requiring such a disclosure duty to third parties would place a heavy duty on a bank. Id.