John Pitblado

PROCEDURAL ARBITRABILITY QUESTIONS ARE FOR THE ARBITRATOR, NOT THE JUDGE, UNLIKE SUBSTANTIVE ARBITRABILITY QUESTIONS

October 12, 2017 by John Pitblado

Allegations of failure to follow the contractually-required dispute resolution procedure raise “procedural questions,” which must be asked of the arbitrator. In contrast, “substantive arbitrability questions,” also referred to as “gateway questions” of arbitrability, are for the court to decide. Questions of substantive arbitrability address two issues: whether the parties have a valid arbitration agreement, and whether the issue is within the scope of the arbitration agreement.

In determining whether an issue is within the scope of a valid arbitration agreement, the court must initially decide whether the arbitration clause is “broad” or “narrow.” Clauses that provide for arbitrating “any claim arising out of or relating to the contract” are considered broad as a matter of law. When answering questions of scope, courts “must liberally construe a valid arbitration clause, ‘resolving doubts in favor of arbitration. . . .” As a result, even where claims sound in tort, rather than contract, they will be determined to be within the scope of a broad arbitration clause if the claims “touch matters covered by the arbitration clause.”

Finding that plaintiff’s claims against defendant were within the scope of the parties’ agreement, and that questions raised about arbitrability were procedural, and thus for the arbitrator to decide, the Court granted defendant’s motion to compel arbitration.

Dlorah, Inc. v. KLE Constr., Inc., Civ. 16-5102-JLV (W.D.S.D. July 17, 2017).

This post written by Benjamin E. Stearns.

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ILLINOIS DISTRICT COURT DISMISSES CASE FILED BY INSURANCE DEPARTMENT, AS REHABILITATOR, AGAINST REINSURER

October 11, 2017 by John Pitblado

The District Court for the Northern District of Illinois dismissed a complaint filed by Plaintiff-Rehabilitator, the Illinois Director of Insurance, against Defendant-Reinsurer, Twin Rivers, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment and a violation of the Real Estate Settlement Procedures Act (RESPA).

The underlying reinsurance agreement stemmed from a previous “rehabilitation” proceeding under which the Illinois Department of Insurance was appointed as the rehabilitator for a now-defunct insurer, Triad, and as such was authorized to “bring any action, claim, suit or proceeding against any person with respect to that person’s dealings with Triad.” The present dispute concerns a reinsurance arrangement by which Twin Rivers agreed to reinsure certain private mortgage insurance (PMI) policies issued by Triad on mortgages originated by banks affiliated with Twin Rivers. In exchange for the reinsurance, Triad would pay a certain percentage of each referred borrower’s PMI premiums to Twin Rivers. These so-called “ceded” premiums were deposited into a trust account and invested and used to fund any payments due to Twin Rivers under the reinsurance agreement. Twin Rivers would periodically receive dividends out of the trust account for the benefit of itself and its affiliated banks. A balance of approximately $1,741,655 remained in the trust account as of the filing of the original complaint in this action.

With regard to the breach of contract claim, the Illinois Director of Insurance alleged that Twin Rivers breached its agreement by failing to provide certain disclosures to borrowers whose PMI policies it would be reinsuring consistent with U.S. Department of Housing and Urban Development (HUD) regulations requiring the disclosure of the benefits that Twin Rivers was receiving through the captive reinsurance arrangement. In its motion to dismiss, Twin Rivers argued that no provision in the agreement obligated it to provide HUD disclosures to borrowers and, in any event, the Illinois Department of Insurance was not harmed by the absence of disclosures. The Director argued that language in the agreement requiring that Twin Rivers not violate any “agreement with, or condition imposed by, or consent required by… any governmental… body” imposed a continuing commitment on the part of Twin Rivers to provide the HUD disclosures. Ultimately, the Court found the language “fairly susceptible to Defendant’s interpretation, but not [to] Plaintiff’s.” In so finding, the Court found more plausible the meaning attributed by Twin Rivers, that the language was merely a representation that, at the time of contracting, it was not specifically and individually subject to any legal constraints that would preclude it from agreeing to and fulfilling its obligations under the agreement.

The Court also dismissed the good faith and fair dealing claim, citing the Director’s failure to allege that Twin Rivers exercised its discretion in bad faith, unreasonably, or in a manner inconsistent with the reasonable expectations of the parties. The RESPA claims were also dismissed on account of statute of limitations, and the unjust enrichment claim was dismissed in light of the express contract governing the relationship between the parties.

State of Illinois ex rel. Hammer v. Twin Rivers Ins. Co., No. 16 C 7371 (USDC N.D. Ill. Jul. 5, 2017).

This post written by Gail Jankowski.

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APPLIED UNDERWRITERS, INC., LOSES ARGUMENT TO ENFORCE MANDATORY FORUM SELECTION CLAUSE IN REINSURANCE CONTRACT

October 10, 2017 by John Pitblado

On September 12, the District Court for Connecticut denied a motion to transfer predicated on a mandatory forum selection clause in a reinsurance contract. The contract was one of several entered into by Applied Underwriters, Inc., and its affiliates (collectively “Applied”) with Aiello Home Services (“Aiello”) for a “novel [workers’ compensation] insurance product known as ‘EquityComp,’ which required participation by the insured in a reinsurance facility. Applied’s relations with Aiello broke down when Applied sent Aiello a statement “assessing an additional premium charge of $195,786.52, and reporting total estimated costs nearly $200,000 higher than the previous month’s total cost estimate.” Aiello filed suit alleging violations of the Connecticut Unfair Trade Practices Act and other statutory violations. Applied removed the case to federal court and sought to transfer to the District of Nebraska based on the forum selection clause.

The court denied the motion to transfer. The court found that the bulk of Aiello’s claims arose from statutory violations, not the contract, and therefore were not within the scope of the forum selection clause. The fact that Applied’s defenses relied primarily on the contract was insufficient to bring the statutory claims within the scope of the clause.

The court also analyzed whether the clause would be enforceable under the law of the chosen forum state (Nebraska). As part of that analysis, the court had to determine if Aiello had sufficient minimum contacts to establish personal jurisdiction in Nebraska. “[T]here is a clear distinction between conventional commercial contracts and those that arise in the business of insurance.” While an insurance company that markets policies to residents of a given state establishes sufficient minimum contacts within that state, the insureds do not simultaneously establish sufficient contacts with the insurer’s home state. As a result, the court refused to enforce the clause.

Charter Oak Oil Co., Inc. v. Applied Underwriters, Inc., No. 3:17-cv-00689 (SRU) (USDC D. Conn. Sept. 12, 2017).

This post written by Benjamin E. Stearns.

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NINTH CIRCUIT ALLOWS CLASS ARBITRATION TO PROCEED DESPITE ABSENCE OF EXPRESS REFERENCE TO CLASS ARBITRATION

October 9, 2017 by John Pitblado

Lamps Plus appealed an order permitting class arbitration of claims related to a data breach of personal identifying information of its employees, alleging negligence, breach of contract, invasion of privacy, and other claims. The district court previously found that the arbitration agreement was ambiguous as to class arbitration and denied Lamps Plus’s motion to compel bilateral arbitration, allowing class-wide arbitration to proceed.

On appeal, the Ninth Circuit affirmed, all the while acknowledging the Supreme Court’s finding in Stolt-Nielsen that under the Federal Arbitration Act, a party may not be compelled to submit to class arbitration unless “there is a contractual basis for concluding that the party agreed to do so.” However, the Court went on to find that the lack of an express reference to class arbitration was “not the ‘silence’ contemplated in Stolt-Nielsen.” As such, the Court construed the language “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to my employment” as to authorize class arbitration and further found that its interpretation of that clause “require[d] no act of interpretive acrobatics” and was “the most reasonable” interpretation possible.

Varela v. Lamps Plus, Inc., No. 16-56085 (9th Cir. Aug. 3, 2017).

This post written by Gail Jankowski.

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FOURTH CIRCUIT REVERSES RULING THAT REINSURANCE AGREEMENT IS AN “INSURANCE CONTRACT” UNDER VIRGINIA LAW

September 14, 2017 by John Pitblado

Applying the doctrine of judicial estoppel, a district court refused to compel arbitration finding that the arbitration clause in a reinsurance agreement was unenforceable under a Virginia statute that voided a mandatory arbitration clause in an “insurance contract.” On appeal, the issue was whether an arbitrator can be delegated the authority to decide if a contract is an “insurance contract” under the statute. The Fourth Circuit held that the district court properly refused to compel arbitration, but committed reversible error by applying judicial estoppel to reach that conclusion.

The contract here was a Reinsurance Participation Agreement (“RPA”). An arbitration clause in the RPA had a “delegation provision” granting authority to resolve all questions of arbitrability to the arbitrator. This included the right to decide if the RPA was an “insurance contract” under Virginia law, and, in turn, whether the arbitration clause was void. The Fourth Circuit narrowed the issue to the enforceability of the delegation provision itself and applied a two-prong test: (1) did the insured specifically challenge the delegation provision, not the entire arbitration clause; and if so (2) was the provision unenforceable “upon such grounds as exist at law or in equity.”

The Court held that the first prong was satisfied because the insured challenged “any” arbitration provision in the RPA, and asserted that the delegation provision was unenforceable under Virginia law. It explained that, to grant an arbitrator the authority to answer a “core” question of Virginia insurance law—whether a contract is an “insurance contract”—would undermine “the precise outcome Virginia sought to prevent” in enacting the statute; namely, guaranteeing insureds access to Virginia courts. Thus, the Court found that delegation provisions in even “putative” insurance contracts governed by Virginia law are invalid, “at least to the extent such provisions authorize an arbitrator to resolve whether the contract at issue is an ‘insurance contract.’”

Finally, the Court held that the district court abused its discretion in applying judicial estoppel to preclude the insurer from arguing on the merits that the RPA was not an “insurance contract” for purposes of Virginia law. The Court therefore remanded the case for full briefing on that issue.

MinnieLand Private Dayschool, Inc. v. Applied Underwriters Captive Risk Assurance Company, Inc., No. 16-1511 (4th Cir. Aug. 11, 2017)

This post written by Alex Silverman.

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