The terms of a risk transfer contract may determine whether it is insurance or reinsurance. In a Treaty Tip, we discuss a recent case which had a somewhat surprising result.
This post written by Rollie Goss.
See our disclaimer.
Contract Interpretation
FEDERAL COURT DISMISSES CLAIMS AGAINST THIRD-PARTY ADMINISTRATOR
The Indiana Department of Environmental Management and the Environmental Protection Agency brought certain enforcement actions against Hartford Iron & Metal, Inc. to remediate alleged environmental damage at a scrapyard run by Hartford Iron. It sought coverage from Valley Forge Insurance Company, and the parties eventually entered into two settlement agreements obligating Valley Forge to pay for the remediation of the site and the defense of the regulatory actions. Valley Forge hired Resolute Management Inc. to act as a third-party claims administrator, and Resolute became heavily involved in managing the remediation of the site. Disputes arose from the remediation project and litigation followed. Hartford Iron brought a third-party complaint against Resolute asserting various claims, which it moved to dismiss. The court granted Resolute’s motion, finding that it could not be liable to Hartford Iron for breach of contract because there was no privity or contractual arrangement between those parties, irrespective of whether Resolute was the alleged reinsurer of Valley Forge policies. The Court likewise dismissed the various tort claims brought by Hartford Iron against Resolute, holding that these claims were premised solely upon unsupported legal conclusions. Valley Forge Insurance Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006 (USDC N.D. Ind. June 15, 2016).
This post written by Rob DiUbaldo.
See our disclaimer.
SOUTH CAROLINA DISTRICT COURT FINDS THERE IS NO SEPARATE CAUSE OF ACTION FOR APPORTIONMENT UNDER SOUTH CAROLINA’S CONTRIBUTION AMONG TORTFEASORS ACT
Plaintiff Companion Property and Casualty Insurance Company (“Companion”) participated in a fronted insurance program with Redwood and Freestone. Reinsurance collateral trusts were established for Companion’s benefit and maintained by defendant U.S. Bank as trustee. Companion authorized Redwood and Freestone to administer the trusts’ assets by giving direction to U.S. Bank. One such direction was to authorize certain third-parties who could act for Redwood and Freestone with regard to each trust account. Through the direction of Redwood, Freestone and their authorized third-parties, U.S. Bank made certain investments which were ultimately to the detriment of the trusts. U.S. Bank then made claims against the third-parties for apportionment, contribution and indemnification for its liability to Companion. The third-party defendants moved to dismiss all of U.S. Bank’s claims.
U.S. Bank asserted that third-party defendants are responsible for damages alleged by Plaintiff Companion pursuant to South Carolina Code § 15-38-15 which addresses apportionment of percentages of liability among tortfeasors responsible for less than fifty percent of total fault.
Analyzing South Carolina’s Contribution Among Tortfeasors Act (“SCCATA”), the Court noted that “apportionment” as it appeared in the statute occurred only after the jury “(a) has awarded damages to a plaintiff, (b) has determined any comparative negligence by the plaintiff, and then (c) only after motion by the defendant.” Unlike SCCATA’s statutory language for other causes of action – for example contribution – which described the relief as an action or right to contribution, such verbiage was not present in the provision of SCCATA concerning apportionment. The Court also noted SCCATA referred to “the total percentages of fault attributed to the plaintiff and the defendants must be one hundred percent” – but there was no mention of any fault allocation to third-party defendants. U.S. Bank’s claim for contribution was therefore dismissed.
Companion Property and Casualty Insurance Company v. U.S. Bank National Association, 3:15-cv-01300 (USDC D.S.C. May 27, 2016)
This post written by Nora A. Valenza-Frost.
See our disclaimer.
PENNSYLVANIA FEDERAL COURT REMANDS LITIGATION AGAINST BROKER BACK TO STATE COURT, FINDING THAT PARTY WAS NOT FRAUDULENTLY JOINED
The background of this case is that Boomerang Recoveries LLC, a reinsurance program review company, investigated Farmers Insurance Company’s reinsurance contracts to identify any premiums Farmers had been overcharged in exchange for a percentage of any recoveries. Boomerang allegedly found that Farmers had been overcharged $2,246,014.65 in reinsurance premiums from 2003 to 2013. Guy Carpenter & Company LLC, the reinsurance broker, conducted its own review in response to Boomerang’s, and found that Farmers owed reinsurers over two million dollars in premium that had not been paid, thus reducing the amount owed to Farmers to $273,989.97. According to Boomerang, Guy Carpenter had no justification for performing the audit and disputing Boomerang’s findings, that Guy Carpenter disparaged Boomerang, and induced Farmers not to pursue a substantial portion of the recoveries.
On December 9, 2014, Boomerang brought a litigation against Guy Carpenter and two of its officers for various torts, including intentional interference with contract, unfair competition, commercial disparagement and other claims in Pennsylvania state court. The case was removed and then later remanded back to the state court. Boomerang then added Marsh & McLennan Cos. Inc. (MMC) as a defendant in a fifth amended complaint, and MMC again removed the case. Boomerang then moved to remand on the basis that removal was improper given the forum defendant rule, 28 U.S.C. § 1441(b)(2), and that one of the defendants is a citizen of Pennsylvania. The defendants argued that the one officer who is a Pennsylvania citizen was fraudulently joined to defeat removal. The Pennsylvania federal court, however, concluded that the officer was not fraudulently joined, and that the case was improperly removed from state court. Thus, the court remanded the action back to Pennsylvania state court for lack of federal subject matter jurisdiction. Boomerang Recoveries, LLC v. Guy Carpenter & Co., LLC, Case No. 16-0222 (USDC E.D. Pa. Apr. 21, 2016).
This post written by Jeanne Kohler.
See our disclaimer.
FOLLOWING REVERSAL OF ARBITRABILITY RULINGS ON APPEAL, COURT DISMISSES REINSURANCE LITIGATION BASED ON FORUM SELECTION
On August 15, 2014, we reported on a Tennessee district court finding unenforceable an arbitration clause in a Reinsurance Participation Agreement (RPA) between an insured and a reinsurer. The insured had filed a lawsuit seeking to reform the RPA, and the reinsurer sought to compel arbitration. The court refused to compel arbitration, finding that the arbitration clause was invalid. Subsequently, the Sixth Circuit vacated this ruling, finding that the parties manifestly intended to submit the threshold question of arbitrability to the arbitrator and not the court. On remand to arbitration, the arbitrator then determined that the matter was not arbitrable based on the RPA’s forum selection clause. In response to that ruling, the reinsurer moved to vacate it, and to dismiss the lawsuit altogether based on the choice of a Nebraska forum in the RPA’s forum selection clause.
The court has now granted dismissal, holding that the forum selection clause was unambiguous, and it was mandatory. The court also found that the insured failed to demonstrate that the clause was obtained by fraud, duress or other unconscionable means, that a Nebraska court would not handle the suit properly, or that Nebraska was seriously inconvenient to the insured. The insured also failed to show that “public-interest” factors disfavored a dismissal. Milan Express Co., Inc. v. Applied Underwriters Captive Risk Assurance Company, Inc., Case No. 1:13-CV-01069 (USDC W.D. Tenn. Feb. 2, 2016).
This post written by Barry Weissman.
See our disclaimer.