Savers Prop. & Cas. Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No. 13-2288/2289, 2014 U.S. App. LEXIS 6488 (6th Cir. Apr. 9, 2014).
The Sixth Circuit Court of Appeals issued its highly anticipated decision and as many expected the court reversed the district court, vacated the injunction on the arbitration and remanded the case for dismissal. As described in our December 2013 Reinsurance Newsletter, the district court accepted the argument by one of the parties that certain ex parte communications required an investigation into the bias and fairness of the arbitration and granted an injunction against further action in the arbitration pending an investigation. The circuit court found that the district court erred by prematurely interjecting itself into the arbitration.
The court reiterated the general rule that courts may become involved in arbitrations in only two stages: (1) at the beginning of the arbitration to address gateway matters of arbitrability; and (2) at the conclusion of the arbitration to confirm, vacate or modify an award under narrow circumstances. The court stated that the overall structure of the Federal Arbitration Act (“FAA”) (Michigan arbitration law applied here, but it was the same as the FAA) precluded interlocutory review of arbitration proceedings and decisions. The court found that the request for the district court to intervene in this ongoing arbitration proceeding was plainly improper. The court also rejected the district court’s reliance on Section 2 of the FAA to justify interlocutory review. The court stated that this section is limited to review where there is a defect in the underlying contract containing the agreement to arbitrate.
Finally, the court distinguished the cases relied upon to justify the interlocutory review, stating that in those cases the parties agreed to interlocutory review of certain decisions by the courts (by adopting the American Arbitration Association Commercial Rules and their supplementary rules for class arbitrations). In this case, stated the court, the parties had not contractually agreed to have the courts perform any interlocutory review. The court held that “[a]bsent express or implied consent in the underlying agreement to arbitrate, federal courts may not graft a provision for interlocutory review onto the otherwise straight-forward regime contemplated by the FAA and the Michigan Arbitration Act.” The court concluded that there was a remedy and the arbitrators’ decision-making will not be forever protected from judicial review; but that review will not take place until the panel has concluded its work and issued a final award.
Challenging the actions of arbitration panels or parties during an arbitration in court is a difficult thing to do. This case emphasizes that these types of challenges typically belong after the final award is made and the arbitration is concluded.
First Circuit Rejects Reinsurer’s Attempt to Collaterally Estop Arbitration Based on Prior Arbitration Award
Employers Ins. Co. of Wausau v. OneBeacon Am. Ins. Co., No. 13-1913, 2014 U.S. App. LEXIS 3613 (1st Cir. Feb. 26, 2014).
The First Circuit Court of Appeals affirmed a district court order dismissing a reinsurer’s declaratory judgment complaint seeking to collaterally estop an arbitration based on an arbitration award obtained by another reinsurer on the same program. The cedent entered into a multiline excess cover with various reinsurers. A dispute arose and the cedent demanded arbitration against one of the reinsurers. The arbitration award was in favor of that reinsurer. Subsequently, the cedent demanded arbitration against the other reinsurers, including the same claims as against the first reinsurer. After the demand, the parties agreed to a consolidated arbitration.
Following the consolidation agreement, the cedent petitioned the district court seeking a declaration that the first arbitration award against the other reinsurer had preclusive effect on the reinsurers in the second arbitration. The district court denied the petition, holding that the preclusive effect of a prior arbitration award was a matter for the arbitrators to decide. This appeal followed.
In affirming the district court, the First Circuit addressed the single issue of whether a dispute over the preclusive effect of a prior arbitration is arbitrable, especially where the award in the prior arbitration was confirmed by a federal court order. The reinsurer argued that federal courts have exclusive authority to determine the preclusive effect of their judgments and that when the parties negotiated their arbitration agreement the applicable case law did not hold that preclusion was an arbitrable issue. The circuit court rejected both arguments.
The court analyzed whether the arbitration clause covered disputes over the preclusive effect of prior arbitrations. The court found that the arbitration clause was broadly worded. The court also noted the broad agreement among the circuit courts that the effect of an arbitration award on future arbitrations is properly resolved through arbitration. In rejecting the reinsurer’s argument that Section 13 of the FAA, which provides that an order confirming an arbitration award has the same effect as a judgment, compels that only courts can rule on the effect of a prior confirmed arbitration award, the court stated that there was a distinction between an arbitration award and the order confirming it. The circuit court reiterated the limited role of the courts in reviewing arbitral decisions, which typically has little to do with the substantive significance of the arbitration award.
A collateral estoppel analysis, on the other hand, requires the court to determine substantive issues, including what issues were decided and whether the determination on those issues was a valid and binding judgment. Because a federal judgment confirming an arbitration award does not address the steps leading to the decision on the merits, there is no reason, found the court, for an order confirming an arbitration award to cloak the federal court with exclusive power to determine the preclusive effect of the arbitration. Thus, while a federal court will protect its judgments, where a federal court has nothing to say about the merits of an arbitration award, a subsequent arbitrator does not infringe on the prerogatives of the federal court by determining the preclusive effect of that arbitral decision.
On the issue of the state of the law when the parties entered into the contract, the court found that the reinsurer had waived the argument because it was not raised before the district court.
Nebraska Federal Court Severs Injunction Claims and Transfers Them to Pair With Petitions to Compel Arbitration in Two Different Jurisdictions
National Indem. Co. v. Transatlantic Reinsurance Co., No. 8:14-CV-74, 2014 U.S. Dist. LEXIS 43473 (D. Neb. Mar. 31, 2014).
In a complicated procedural dispute, a Nebraska federal court has severed a party’s motion for a preliminary injunction against a reinsurer’s attempt to commence arbitration and has transferred the injunction requests to be paired with separate petitions to compel arbitration brought by the reinsurer in two different federal courts.
Disputes arose between the reinsurer and its affiliates and two different cedents on two different sets of reinsurance contracts covering asbestos and environmental liabilities. The plaintiff in this case had entered into two separate loss portfolio transfer reinsurance contracts with the two cedents along with two separate administrative services agreements to provide administrative, claims handling and reinsurance collection services for the cedents. The reinsurer and its affiliate sought to compel the plaintiff, who argued that it was not a party to the underlying reinsurance agreements, to participate in arbitration of each separate dispute. In response to the reinsurers’ demands, the plaintiff brought suit to enjoin arbitration. Nearly simultaneously, the reinsurer and its affiliate petitioned two different federal courts to compel the plaintiff to arbitrate.
In severing the plaintiff’s injunction request and transferring the matters to the respective district courts that were handling the reinsurer’s petition to compel arbitration, the court found that the overall disputes between the parties on the issue of whether the plaintiff could be compelled to arbitrate would be more efficiently resolved in those other district courts. The case goes through a detailed procedural analysis of requests to enjoin arbitration and petitions to compel arbitration under Section 4 of the FAA. While the court noted that it could, in its discretion, grant the injunctive relief sought by the plaintiff, it could not offer complete relief because it was not the proper venue to decide the parallel petitions to compel arbitration under Section 4 of the FAA. By severing the two injunction requests and sending them to the districts hearing the petitions to compel, the entire procedural dispute between each of the parties could be resolved more efficiently.
Connecticut Federal Court Compels Arbitration and Denies Injunction Against Arbitration Based on a Cut-Through Provision
Trenwick Am. Reinsurance Corp. v. CX Reinsurance Co., no. 3:13cv1264 (JBA), 2014 U.S. Dist. LEXIS 70823 (D. Conn. May 23, 2014).
A Connecticut federal court dismissed a request by a reinsurer to enjoin an arbitration brought by a third-party beneficiary to an underlying reinsurance agreement by way of a cut-through provision. The underlying reinsurance agreement contained a cut-through provision that triggered upon the cedent’s insolvency. Here, the cedent became insolvent and the third-party beneficiary under the cut-through commenced arbitration against the original reinsurer. The reinsurer took the position that the cut-through was inapplicable because of a commutation agreement between the reinsurer and the cedent. The reinsurer sought to enjoin the arbitration because the right to arbitrate was extinguished as part of the commutation.
In denying the injunction and granting the cross-motion to compel arbitration, the court held that whether the third-party beneficiary’s right to arbitrate persisted after the commutation was an arbitrable issue and must be resolved in arbitration. The clash between the cut-through provision in the commuted reinsurance contract and whether the rights of a third-party beneficiary are extinguished by an agreement between the original reinsurer and cedent could not be determined by the court. Because the arbitration clause in the reinsurance contract was broad, the matter was left to resolution by the arbitration panel.
Georgia Federal Court Declines to Consolidate Dispute With Mandatory Arbitration Clauses Under Two Reinsurance Contracts
Ga. Cas. & Sur. Co. v. Excalibur Reinsurance Corp., No. 1:13-cv-00456-JEC, 2014 U.S. Dist. LEXIS 32469 (N.D. Ga. Mar. 13, 2014).
This case arose from a dispute over two reinsurance contracts. Both contained mandatory arbitration clauses. The first contract contained a choice of law provision but no forum selection clause, and the second contract contained a forum selection clause but no choice of law provision. The cedent demanded arbitration for breach of the contracts and the reinsurer counter-demanded for unpaid premiums on the first contract. As the court noted, although both parties agreed that arbitration was proper, the reinsurer refused the cedent’s demand for a consolidated arbitration of all claims under both contracts and this action ensued. In dismissing the complaint to compel a consolidated arbitration, the court held that neither contract contained a consolidation clause nor was either contract governed by arbitration law that permitted judicial consolidation.
New York Intermediate Appellate Court Holds Statute of Limitations for Court to Decide Not Arbitrators
ROM Reinsurance Management Co., Inc., v. Continental Ins. Co., No. 11809, 2014 N.Y. App. Div. LEXIS 1509 (N.Y. App. Div. 1st Dep't Mar. 11, 2014).
While it is given that under the FAA procedural issues like application of the statute of limitations are left for the arbitrators and the not the courts to decide, under certain circumstances state law may override that presumption. Under New York law, specifically Article 75 of the New York Civil Practice Law & Rules, determining whether a claim is timely is for the court to decide and not the arbitrators.
In this case, even though there was no dispute that the FAA applied, the parties’ agreement included an arbitration clause that expressly provided that “the arbitration laws of New York State” shall govern the arbitration. In reversing the motion court, the Appellate Division held that the operative language in the parties’ agreement was the kind of “critical language concerning enforcement” required by case law that allows for the exception. That exception requires that the statute of limitations issue be addressed by the court and not the arbitrators. The case was remanded to the motion court to resolve the statute of limitations issue before the arbitration commenced.
Subpoena to Umpire to Release Arbitration Award Quashed
Jo Ann Howard & Assocs. P.C. v. Cassity, No. 4:09CV01252 ERW, 2014 U.S. Dist. LEXIS 64128 (E.D. Mo. May 9, 2014).
In this unusual case, parties seeking to challenge the propriety of a receiver’s actions subpoenaed the umpire in a reinsurance dispute between the insolvent cedent and its reinsurer seeking to obtain an unreleased arbitration award as evidence in their case. The reinsurance arbitration had been enjoined by the rehabilitation court as part of its overall stay of any actions against the insolvent estate. The court quashed the subpoena because it was issued in violation of the rehabilitation injunction order and because it was issued in support of a defense that the court struck as legally insufficient.
Second Circuit Affirms Judgment on Aviation Reinsurance Premiums
Aioi Nissay Dowa Ins. Co. v. Prosight Specialty Management Co., No. 13-2689-cv, 2014 U.S. App. LEXIS 7490 (Apr. 22, 2014) (Summary Order).
The Second Circuit affirmed a judgment finding that a reinsurer was charged too much for reinstatement premiums on aviation reinsurance contracts that responded to the terrorist attacks of September 11, 2001. The cedent had purchased reinsurance from an aviation reinsurance pool. Two types of contracts were entered into: an excess-of-loss contract and a reinstatement of premium protection contract. The cedent asked the court to construe these contracts together as if there was really a single contract. The court rejected that request finding that the primary objective in contract interpretation is to give effect to the intent of the parties as revealed by the language they chose to use. The court sided with the district court in interpreting the reinsurer’s liability as more limited than the cedent claimed.
The court also addressed commutations that were entered into with the cedent and the other reinsurance pool members. The court rejected the cedent’s argument that the commutations were really reinstatement premium payments accelerated for future obligations. Because the court concluded that the reinsurance contracts were different contracts with different language, the calculation of the amounts due could differ. Finally, the circuit court agreed with the district court’s more natural reading of what covered loss meant under the reinsurance contracts.
New York Federal Court Upholds Late Notice Defense Against Cedent
Granite State Ins. Co. v. Clearwater Ins. Co., No. 09 Civ. 10607 (RKE), 2014 U.S. Dist. LEXIS 44573 (S.D.N.Y. Mar. 31, 3014).
A New York federal court has granted summary judgment to a reinsurer that issued two certificates of facultative reinsurance based on a late notice defense. This dispute arises out the settlement of asbestos claims brought against two insureds. The claims were settled on a group basis for all policies issued to those insureds by all policy issuing companies in the group. How and when the settlements took place and the level and type of notice provided to the reinsurer on these two facultative certificates was analyzed in great detail by the court. The court also analyzed the law of late notice under both Illinois and New York law.
In finding for the reinsurer, the court concluded that the cedent’s notice was untimely under both Illinois and New York law. The facts as set forth by the court indicate that there was some notice of the underlying claims in the 1980s, but no further notice of the impending settlements until after the settlements had been agreed and payments started to be made by the ceding company’s group to the insured or its trust fund. The court analyzed the notice provisions of the facultative certificates, which included the right to associate and also claims control provisions. The court found that notice provided after settlement “effectively renders an insurer’s contractual right to associate a nullity.” The court held that under both Illinois and New York law, “where a contract contains both a right to associate in the control of claims and a notice requirement, notice provided after those claims have already been settled is untimely.”
In construing Illinois law, the court found that under the facultative certificates, the notice provisions were conditions precedent to the reinsurer’s obligation to pay and the cedent would be barred from recovering because of the breach of the notice provisions. Under New York law, the court found that while the notice was untimely, the reinsurer offered no evidence of “tangible economic injury” required to demonstrate prejudice. Accordingly, under New York law, the reinsurer could not defeat liability on that ground. But, the court held instead that the manner in which notice was provided to the reinsurer led to the conclusion that the cedent did not meet its duty of utmost good faith. Under New York law, breach of the duty of utmost good faith, when coupled with the untimely notice, barred the cedent’s claim for coverage under the facultative certificates. Thus, under Illinois or New York law, the cedent could not recover and the late notice defense was upheld.
Wisconsin Federal Court Grants Partial Summary Judgment on Billings of Indemnity and Expense
Employers Ins. Co. v. R&Q Reinsurance Co., No. 13-cv-709-bbc, 2014 U.S. Dist. LEXIS 67473 (D. Wisc. May 16, 2014).
A Wisconsin federal court granted partial summary judgment to a cedent on its claim that it could bill indemnity and expense together, but gave the reinsurer an opportunity to supplement evidence on the issue of retention amounts and the calculation of prejudgment interest.
The cedent issued two umbrella policies to its insured that defined the limit of liability for each occurrence as the total limit of liability for damages, direct and consequential, and defense expense because of personal injury. The reinsurer issued facultative certificates of reinsurance covering the umbrella policies with typical following language, but also including language indicating that if the cedent’s policy limit included expenses, the reinsurer’s maximum limit of liability was that stated in the declarations.
Asbestos losses were paid by the cedent in a settlement that included costs for indemnity and expense. The cedent billed under the facultative certificates and the reinsurer refused to pay.
In granting partial summary judgment for the cedent, the court resolved the dispute between the parties on whether the percentage that the reinsurer must pay included expense as well as indemnity. The court was less than enamored with the clarity of either party’s arguments, but understood the issue to be whether defense expenses qualify as a portion of the settlement. The court found for the cedent in part because the reinsurer never explained why it believed that defense expenses did not qualify as part of the settlement. The court noted that the reinsurer was not claiming that it was being asked to pay outside of the scope of its contractual obligations and did not argue that the settlement amount exceeded the policy limit.
The court denied summary judgment to the cedent on the issue of whether the cedent met its retention obligations. Because this issue was raised for the first time in the reinsurer’s opposition brief, the court granted the reinsurer the opportunity to present evidence to show why the cedent’s evidence is inadmissible or insufficient to show that the cedent had exceeded the retention amounts for both facultative certificates. Another issue arose concerning the calculation of prejudgment interest and because the cedent presented a revised calculation in response to the reinsurer’s argument, the court gave the reinsurer an opportunity to respond to those revised calculations.
New Jersey Federal Court Finds in Part for Retrocedent in Complicated Retrocessional Program
Munich Reinsurance Am., Inc. v. Am. Nat’l Ins. Co., No. 09-6455 (FLW), 2014 U.S. Dist. LEXIS 25078 (D. N.J. Feb. 27, 2014) and 2014 U.S. Dist. LEXIS 71777 (D. N.J. May 26, 2014).
In a complicated retrocessional dispute that has generated a series of judicial opinions, a New Jersey federal court denied the retrocessionaire’s request for rescission and has found in partial favor of the retrocedent. In the first opinion, the court provides an in-depth review of the evidence after a nine-day bench trial. The court also provides a primer on reinsurance for the unwashed. The underlying business was excess workers’ compensation reinsurance that was intertwined with workers’ compensation carve-out retrocessional coverage. The interplay between the contracts and varying time periods, and whether claims were reported property, are all part of the dispute.
The retrocedent brought suit for breach of contract because of the retrocessionaire’s failure to pay billings under the contract. The retrocessionaire claimed it overpaid and sought rescission. The parties moved for summary judgment and certain rulings were made that determined how the retention should be calculated and dismissing the retrocessionaire’s late notice defense. The trial resolved the remaining liability claims. The court’s findings of fact are comprehensive.
In denying the retrocessionaire’s rescission claim, the court held that the claim for breach of the duty of utmost good faith was not an independent cause of action and that it was merely a claim for breach of contract. The court found that the facts did not support a finding of bad faith in the retrocedent’s performance of its obligations. The court also stated that the retrocessionaire had waived any claim for rescission by failing to raise the claim in a timely manner. The court also rejected the retrocessionaire’s claim for rescission based on failure to disclose, finding that none of the information was material to the underwriting process. The court concluded that the retrocedent was entitled to payment on claims not subject to claim-specific defenses and that the retrocedent’s poor claims handling practices were not a material breach of the contract.
There were some specific claims that the court found was not covered under the retrocessional contracts and those claims were excluded from the retrocedent’s recovery. In the most recent opinion, the court resolved remaining issues on damages and prejudgment interest, including allowing an offset for missing premium that the retrocedent mislabeled and was sent by the retrocessionaire’s agent to the wrong party.
Retrocedent Awarded Full Amount Claimed From Retrocessionaire
Republic Ins. Co. v. Banco De Seguros Del Estado, No. 10 C 5039, 2014 U.S. Dist. LEXIS 36513 (N.D. Ill. Mar. 20, 2014).
In yet another claim arising from the infamous Pan Atlantic Syndicate, the front for the Syndicate obtained a judgment against one of the Syndicate’s retrocessionaires on amounts due on a specific LMX quota share treaty. Summary judgment on liability had been awarded to the retrocedent and the only remaining issues were whether the retrocedent could collect on the full amount from the retrocessionaire and the amount of an offset. In deciding for the retrocedent, the federal court in Illinois held that the retrocedent was not seeking to recover any of the Syndicate’s share of the loss, but only the share of the loss that was ceded to the quota share treaty. The court also rejected the retrocessionaire’s offset claim because the retrocessionaire did not meet its burden of proving its entitlement to recoupment with a reasonable degree of certainty.
Illinois Federal Court Denies Cedent’s Motions to Add Specific Performance and Request for Reinsurer to Post a Bond
Guar. Trust Life Ins. Co. v. Am. Med. & Life Ins. Co., No. 10 C 2125, 2014 U.S. Dist. LEXIS 61684 (N.D. Ill. May 5, 2014).
In 2010, the cedent commenced this action against its reinsurer alleging that the reinsurer breached a reinsurance agreement. In 2014, the cedent filed two motions seeking leave to file a second amended complaint to add a claim for specific performance and an order requiring reinsurer to post a bond.
In denying the first motion, the court found that the cedent failed to show excusable neglect. The scheduling order set June 1, 2011 as the deadline for amendments to the pleadings. The cedent argued that its neglect was excusable because the “need to invoke the equitable powers of the court to compel performance did not become acute until recently.” In support of its contention, the cedent stated that the reinsurer reported significantly diminished cash and cash equivalents and that its financial strength had been downgraded. Although the court recognized that the cedent could have been excused for not requesting leave to amend until June 2013 or even December 2013, it had provided no reason to justify its 2014 request.
In denying the second motion, the court held that it would not grant a preliminary injunction to a party that could easily prove its case at trial. In its motion, the cedent stated that it had incurred significant damages (including attorney fees) and that it was afraid the reinsurer would become insolvent. The court found multiple issues with the cedent’s motion. First, the court stated that it had no power to enjoin a defendant’s use of its property pending adjudication of a plaintiff’s claim for money damages. Second, the court stated that even if the cedent had a claim for equitable relief pending when it filed its motion to compel a bond, the court still would have denied its motion because the cedent had an adequate remedy: money damages after a trial.
Connecticut Federal Court Requires Reinsurer to Post Pre-Pleading Security
Travelers Indem. Co. v. Excalibur Reinsurance Corp., No. 3:11 – CV – 1209 (CSH), 2014 U.S. Dist. LEXIS 33182 (D. Conn. Mar. 11, 2014).
Connecticut law requires unauthorized insurers to post security. Conn. Gen. Stat. § 38a-27(a). Here, a cedent filed a breach of contract action against a reinsurer alleging that the reinsurer was an “unauthorized insurer.” According to the cedent, the reinsurer was required to post pre-pleading security because “to rule otherwise would disregard the language and intent of both the Connecticut security statute of Fed. R. Civ. P. 64.” The reinsurer argued that the statute was inapplicable because although the reinsurer later cancelled its authorization, it was authorized in Connecticut at the time the reinsurance agreement was entered into. The reinsurer also claimed that the reinsurance agreement was not “issued and delivered” in Connecticut and that it contained a New York choice of law provision.
In granting the motion, the court disagreed with the reinsurer and held that the statute afforded a remedy concerning insurers who were not authorized at the time that they filed in Connecticut courts as opposed to when the insurance agreement was entered into. Although the statute provided an exemption for non-Connecticut direct insurance, the statutory exemption did not apply to the reinsurance context. In addition, the court held that the statute was procedural, not substantive, and thus the choice of law provision was inapplicable. Ultimately, the court held that the cedent was entitled to invoke § 38a-27(a) and that the reinsurer was required to post security.
Arkansas Federal Court Finds Brokerage Agreement Ambiguous and Denies Summary Judgment
Global Risk Intermediary, LLC v. Aetna Global Benefits Ltd., No. 4:13CV00133 JLH, 2014 U.S. Dist. LEXIS 34193 (W.D. Ark. Mar. 12, 2014).
Most courts hold that when a contract is susceptible of two meanings it is ambiguous. This case is no exception. The parties entered into a brokerage agreement with two clauses that seemed to contradict concerning the liability to pay brokerage. Both parties moved for summary judgment, but the court denied both motions. In denying the motions, the court held that the terms of the contract appear contradictory. To resolve the ambiguity, stated the court, parol evidence and evidence of course of dealing likely would be required. Because extrinsic evidence was not before the court, the motions for summary judgment were denied.
Recent Speeches and Publications
- Larry Schiffer presented “Common Clauses Common Mistakes in Facultative Reinsurance,” at the Lloyd’s Market Association’s Academy Masterclass, on April 9, 2014, in the Old Library at Lloyd’s, London.
- Larry Schiffer spoke on “Negotiating and Drafting Secure and Comprehensive Commutation Agreements” at the American Conference Institute’s 9th National Run-Off and Commutations Summit, on April 23, 2014, in New York City.
- Larry Schiffer spoke on “Cyber-Risk in the Target Age,” at the Brokers and Reinsurance Markets Association Committee Rendezvous on April 28, 2014, in Clearwater, Florida.
- Larry Schiffer spoke on “How Does Social Media Change Hiring and Arbitral Decisions?” at the ARIAS•U.S. 2014 Spring Conference, Making Better Decisions, on May 9, 2014, in Key Biscayne, Florida.
- Larry Schiffer, Caroline Billet and Zachary P. Novetsky had their article, “A Brief Review of Reinsurance Trends in 2013,” published in the Westlaw Journal Insurance Coverage, Vol. 24, Issue 24, on March 21, 2014.
- Larry Schiffer’s Commentary, “What Does ‘Written as Such’ Really Mean?” was published on the website of the International Risk Management Institute, Inc., IRMI.com, in March 2014.