Arbitration Process Issues

CALIFORNIA COURT CONSIDERS ENFORCEABILITY OF ARBITRATION CLAUSE IN REINSURANCE RELATED AGREEMENT APPLYING NEBRASKA LAW

February 1, 2018 by Rob DiUbaldo

In a case involving a reinsurance participation agreement (RPA), a California trial court has examined the interplay between two seemingly irreconcilable contract provisions: one that provided for the arbitration of any disputes thereunder, and another that chose Nebraska law for purposes of construction, pursuant to which agreements to arbitrate disputes implicating certain insurance contracts are invalid.

Plaintiffs were a set of affiliated companies that entered into a series of agreements with defendants, including a set of workers’ compensation insurance policies, a reinsurance treaty, and the RPA. The RPA (1) provided that any disputes would be arbitrated and delegated issues of arbitrability to the arbitrator, and (2) provided that it should be construed in accordance with Nebraska law. Plaintiffs filed suit seeking a declaration that the RPA was void and unenforceable, and defendants moved to compel arbitration. Plaintiffs argued that the arbitration provision was unenforceable under Nebraska Revised Statute § 25-2602.01(f)(4), which prohibits agreements to arbitrate future disputes regarding “any agreement concerning or relating to an insurance policy other than a contract between insurance companies including a reinsurance contract.”

Under the McCarran Ferguson Act, a state law may prohibit arbitration otherwise required by the FAA (known as “reverse preemption”) if that statute “regulates the business of insurance.” The court determined that § 25-2602.01(f)(4) regulates the business of insurance and thus reverse preempts the FAA. The court went on to note that while parties may generally agree to delegate the power to determine issues of arbitrability to the arbitrator, if the very validity of the agreement to arbitrate is challenged, the court must consider this challenge before compelling arbitration. Finding that plaintiffs had made such a challenge, the court found that it was required to determine whether the RPA was the type of agreement covered by § 25-2602.01(f)(4).

Defendants argued that the RPA was an investment contract, not an insurance policy, and thus not covered by § 25-2602.01(f)(4), but the court disagreed, finding that the RPA was sufficiently related to the relevant workers’ compensation policies to merit such coverage. As such, it was the kind of agreement for which § 25-2602.01(f)(4) prohibits arbitration agreements, and the court denied defendants’ motion to compel arbitration. Parties drafting insurance-related contracts containing arbitration provisions would thus be well advised to consider the impact of applicable state laws on the enforceability of such provisions.

Milmar Food Group II, LLC et al. v. Applied Underwriters, Inc. et al., EF003101-2017 (Orange Cty. Sup. Ct. Dec. 5, 2017)

This post written by Jason Brost.

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THIRD CIRCUIT REFUSES TO COMPEL ARBITRATION IN LIGHT OF ALLEGED FRAUDULENT INDUCEMENT TO SIGN ARBITRATION AGREEMENT

January 29, 2018 by Carlton Fields

The Third Circuit recently affirmed a lower court’s decision refusing car dealership defendants’ motion to compel arbitration pursuant to an arbitration agreement the plaintiffs were allegedly induced to sign. First, the court rejected the dealerships’ argument that the plaintiffs agreed to arbitrate because they signed the arbitration agreement. It noted that a signed arbitration agreement does not necessarily demonstrate intent to be bound in all circumstances, nor did it negate plaintiffs’ argument they were induced to sign the agreement. More importantly, the court held plaintiffs responded to the motion to compel with sufficient additional facts and evidence to place the arbitration agreement into dispute so as to warrant discovery whether the plaintiffs intended to be bound to arbitration. Second, the court dismissed the dealerships’ claim that plaintiffs failed to specifically allege fraudulent inducement in signing the arbitration agreement rather than the contracts in whole, therefore requiring arbitration of the issue of arbitrability. The court found plaintiffs specifically alleged the defense of fraud-in-the-inducement regarding the arbitration agreement, which, if proven, would be grounds to invalidate the arbitration agreement. Therefore, the court affirmed and declined to compel arbitration.

Corchado v. Foulke Mgmt. Corp., No. 17-1433 (3d Cir. Dec. 21, 2017).

This post written by Thaddeus Ewald .
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MISSOURI COURT FINDS INSURANCE CONTRACT’S ARBITRATION CLAUSE UNENFORCEABLE AS AGAINST PUBLIC POLICY

January 25, 2018 by Michael Wolgin

This case arose from an accident at the General Motors plant in Kansas City, Kansas, where an electrician employed by Capital Electric Construction Company, Inc. was severely injured due to negligence by Solaris Power Services, LLC in failing to de-energize equipment on which he was working. Capital was insured by Liberty Mutual Fire Insurance Company. Associate Electric & Gas Insurance Services, LTD. (AEGIS), provided excess liability insurance to Capital. A coverage dispute arose after an uncontested $44 million judgment was entered against Solaris. Solaris alleged it was or should have been an additional insured under both policies, but that both insurance companies wrongly denied it coverage.

AEGIS moved to stay the litigation and compel arbitration on the grounds that its policy contained a mandatory arbitration clause. AEGIS argued that North Dakota law, rather than Missouri law, should apply to the dispute. While Section 435.350 of the Missouri Arbitration Act prohibits mandatory arbitration provisions in insurance contracts, AEGIS argued that under North Dakota law, the policy’s arbitration clause was valid and enforceable. The Court disagreed, reasoning that a Missouri court would apply the law of another jurisdiction only where “not contrary to a fundamental policy of Missouri.” The Court refused to do so here because the arbitration clause at issue directly contravened Missouri public policy. Alternatively, the Court found that the arbitration provision would still be found unenforceable even if it were to apply Kansas law per the policy’s choice of law provision. Simon v. Liberty Mut. Fire Ins. Co., Case No. 17-cv-0152 (USDC W.D. Mo. Dec. 8, 2017)

This post written by Gail Jankowski.

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NINTH CIRCUIT AFFIRMS ORDER REJECTING FIRST AMENDMENT CHALLENGE TO MOTION TO COMPEL ARBITRATION

January 23, 2018 by Michael Wolgin

Consumers filed a putative class action alleging statutory and common law consumer protection and false advertising claims under California and Alabama law, specifically alleging that AT&T falsely advertised their mobile service plans as “unlimited” when in fact it intentionally slowed data at certain usage levels. AT&T moved to compel arbitration pursuant the arbitration agreements included in their wireless data service plans and in light of the Supreme Court’s 2011 ruling in AT&T Mobility LLC v. Concepcion, which held that the Federal Arbitration Act preempts state law deeming AT&T’s arbitration provision to be unconscionable.

Plaintiffs opposed the motion on First Amendment grounds, arguing that an order forcing arbitration would violate the Petition Clause because they “did not knowingly and voluntarily give up their right to have a court adjudicate their claims” and could not “bring their claims in small claims court.” The district court granted AT&T’s motion to compel arbitration, finding that there was no state action in this case to bring the dispute within the ambit of the First Amendment. After denying reconsideration, the district court granted plaintiffs’ motion to certify the order compelling arbitration for immediate interlocutory appeal, finding that there was substantial ground for difference of opinion as to whether state action existed under (1) Denver Area Edu. Telecom. Consortium, Inc. v. FCC or (2) the “encouragement” test. The Ninth Circuit granted permission to appeal.

On appeal, the Ninth Circuit read Denver Area narrowly, reasoning that the case “did not broadly rule that the government is the relevant state actor whenever there is a direct constitutional challenge to a “permissive” statute. The court also found unpersuasive plaintiffs’ argument that the Federal Arbitration Act, including judicial interpretations thereof, “encourages” arbitration such that AT&T’s actions are attributable to the state. The panel concluded, “[p]ermission of a private choice cannot support a finding of state action,” and “private parties [do not] face constitutional litigation whenever they seek to rely on some [statute] governing their interactions with the community surrounding them.” The Ninth Circuit affirmed the district court’s ruling. Roberts v. AT&T Mobility, Case No. 16-16915 (9th Cir. Dec. 11, 2017).

This post written by Gail Jankowski.

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THE FEDERAL ARBITRATION ACT DOES NOT GRANT ARBITRATORS THE POWER TO COMPEL PRE-HEARING PRODUCTION OF DOCUMENTS FROM NON-PARTIES

January 22, 2018 by Michael Wolgin

While the FAA grants arbitrators authority to compel non-parties to appear before them and produce documents at a hearing, it does not authorize them to compel pre-hearing production. The Ninth Circuit Court of Appeals joined the Second, Third and Fourth Circuits in so holding. The Eighth Circuit, however, disagrees, having ruled previously that “implicit in an arbitration panel’s power to subpoena relevant documents for production at a hearing is the power to order the production of relevant documents for review by a party prior to the hearing.” It is also worth noting, as the Ninth Circuit did, that “because arbitration is a creation of contract, arbitration agreements may provide arbitrators greater discovery powers with respect to the parties bound by such agreements.” CVS Health Corp. v. Vividus, LLC, Case No. 16-16187 (9th Cir. Dec. 21, 2017).

This post written by Benjamin E. Stearns.

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