Arbitration / Court Decisions

SECOND CIRCUIT AFFIRMS APPLICATION OF ILLINOIS NOTICE/PREJUDICE RULE IN REINSURANCE ROW

April 13, 2015 by Carlton Fields

Granite State Insurance Company (“Granite State”) brought an action against Clearwater Insurance Company (“Clearwater”) regarding a dispute over reinsurance claims Granite State made, and which Clearwater denied based on late notice. The claims pertained to underlying settlements of a large number of asbestos claims. The reinsurance certificates required prompt notice “of any event or development” which Granite State “reasonably believe[d] might result in a claim.” The district court found that Granite State’s notice to Clearwater under the reinsurance certificates at issue was untimely, and the Second Circuit affirmed.

In particular, the Second Circuit resolved a question raised on appeal pertaining to which state law applied. The parties agreed that, if there was a conflict of laws, Illinois law would apply under a “significant contacts” analysis, versus the law of the state where the action was pending – New York. But Granite State argued that Illinois law did not clearly conflict with New York law, and that therefore the New York federal court should have applied New York’s late notice rule, which requires an affirmative showing of prejudice on the part of the party asserting late notice as a bar to recovery.

The Second Circuit affirmed, finding that Illinois law was sufficiently clear on the issue, and does not require a showing of prejudice. Therefore, the laws were truly in conflict, and conflict of law analysis required application of Illinois law. Clearwater was thus not required to demonstrate that it was prejudiced by Granite State’s late notice in order to refuse to pay Granite State’s claims for reinsurance coverage. Granite State Ins. Co v. Clearwater Ins. Co., No. 14-1494 (2d Cir. April 2, 2015).

This post written by Catherine Acree.

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COURT DIRECTS CEDENTS TO INDICATE WHETHER THEY WILL CONTINUE TO ARGUE AGAINST THE FINALITY OF AN ARBIRATION AWARD TO PRECLUDE ITS CONFIRMATION

April 9, 2015 by Carlton Fields

In a pending dispute in the Southern District of New York arising from a quota share contract of reinsurance between Employers Insurance of Wausau, as reinsurer, and Nutmeg Insurance and Twin City Fire, as cedents, Nutmeg and Twin City argue that issues relating to the parties’ obligations with respect to specific claims arising out of the parties’ reinsurance treaties, and a process to resolve issues relating to those claims, are not yet final and the court therefore lacks jurisdiction to confirm those portions of an arbitration award. The petition to confirm the award, found here, sought to confirm, in part, the arbitration panel’s directive that Nutmeg and Twin City produce certain information and documentation to Wausau supporting the claimed loss at issue. Specifically, the panel directed Nutmeg and Twin City to produce evidence of proof of payment of the loss at issue, copies of the underlying policies at issue, and a narrative and reasonable documentation demonstrating that the loss was within the treaty’s terms.

At issue was the quantum and type of information that must accompany billing in order to trigger Wausau’s payment obligations and whether Wausau may withhold payment pending its request for additional, sometimes privileged, information and documentation. Wausau informed the court that Nutmeg and Twin City’s objections were moot because all parties had performed their obligations and the entire award was now final. The court directed Nutmeg and Twin City to file a letter with the court within five days from the date of its order indicating whether they will persist with their objections to the court’s confirmation of the entire arbitration award. Employers Insurance of Wausau v. Nutmeg Insurance Co., No. 14-CV-9284 (USDC S.D.N.Y. Feb. 25, 2015).

This post written by Renee Schimkat.

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COURT AFFIRMS REINSURANCE ARBITRATION AWARD IN FAVOR OF FIRST STATE INURANCE COMPANY AND NEW ENGLAND REINSURANCE CORPORATION

April 8, 2015 by Carlton Fields

Phased arbitration proceedings involving First State Insurance Company and New England Reinsuance Corporation against Nationwide Mutual Insurance Company addressed claims arising under numerous reinsurance agreements between First State and Nationwide. The arbitration panel entered three orders, one as to each phase, in favor of First State and, as part of its decision, crafted certain remedial measures under the reinsurance agreements between the parties. The arbitration panel’s rulings engendered additional litigation on both procedural and substantive grounds before the federal court. Procedurally, the federal court ruled that First State’s motion to confirm the award as to the first phase was premature when filed because the arbitration panel had not yet ruled on the remaining phases. On reconsideration of its prior order dismissing the motion to confirm as premature, the court ruled that the motion should have been deferred and not dismissed as premature. The court consolidated the motion with First State’s other motions seeking to confirm the awards on the subsequent phases of the arbitration proceedings. Substantively, the court rejected Nationwide’s argument that the panel exceeded its authority in crafting the remedial measures in light of the high level of deference given to arbitral awards by reviewing courts. First State Insurance Co. v. Nationwide Mutual Insurance Co., Case No. 13-cv-11322-IT (USDC D. Mass. Mar. 25, 2015).

This post written by Leonor Lagomasino.

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NATURE OF REINSURANCE RELATIONSHIP PRECLUDES DISMISSAL OF NEGLIGENCE CLAIM BROUGHT BY REINSURER AGAINST CEDENT

April 7, 2015 by Carlton Fields

A federal district court has denied a cedent’s motion to dismiss a negligence claim brought against it by its reinsurer, Old Republic National Title Insurance. The dispute between Old Republic and First American Title arose out of a reinsurance agreement where Old Republic agreed to assume a specified share of First American’s contractual liability under certain title insurance policies. First American negotiated a settlement of claims brought under those title policies and then asserted that Old Republic was obligated under the reinsurance agreement to pay its proportionate share of that sum. Old Republic paid the amount under a full reservation of rights, then sued First American for several causes of action, including negligence. The negligence claim alleged that when Old Republic made the offer for the reinsurance agreement, “First American undertook a duty to underwrite the Title Policies in a reasonably prudent manner and created a special relationship” with Old Republic that First American then breached.

First American moved to dismiss the negligence claim, arguing that the “gist of the action” doctrine precludes it. That doctrine states that an action in tort will not arise for breach of contract unless the tort action arises independent of the existence of the contract. First American argued that its liability stems from the parties’ reinsurance agreement and any duty owed by First American to Old Republic arises solely out of that contractual relationship. The court rejected that argument and the doctrine’s application, stating that the nature of the relationship between reinsurers and cedents, including the exercise of utmost good faith between them, supported a duty grounded in social policy, not solely in contract. The court further found that irrespective of the source of the duty owed, the negligence claim would not be dismissed because Old Republic, in the alternative, sought to rescind the reinsurance agreement and if the rescission claim ultimately prevailed, then the “gist of the action” would no longer be contractual. Old Republic National Title Insurance Co. v. First American Title Insurance Co., No. 8:15-cv-126 (USDC M.D. Fla. March 25, 2015).

This post written by Renee Schimkat.

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COURT FINDS IN FAVOR OF HARBINGER ON $50 MILLION CLAIM INVOLVING PURCHASE OF OLD MUTUAL FINANCIAL LIFE INSURANCE COMPANY

April 6, 2015 by Carlton Fields

In a lengthy opinion detailing extensive findings of fact and law, a New York federal district court entered its order in favor of Harbinger F&G, LLC and against OM Group (UK) Limited in an action stemming from claims arising from the stock purchase agreement for the purchase of Old Mutual Financial Life Insurance Company by Harbinger from OM Group. Under the Agreement, Harbinger was entitled to a $50 million purchase price reduction if the Maryland insurance regulators did not approve a post-closing transaction between Old Mutual and Front Street Re, a reinsurance company owned indirectly by Harbinger, and if Harbinger fulfilled certain other conditions precedent. Harbinger was required to prepare and file certain approval documentation in the form agreed to by the parties, to use reasonable best efforts to obtain governmental approval for the reinsurance transaction and, if the transaction was not approved, Harbinger was required to engage in certain remedial efforts. When the post-closing transaction was not approved but OM Group failed to make the purchase price reduction payment, Harbinger sued. After holding a bench trial on those issues not disposed of on summary judgment, the trial court entered judgment in favor of Harbinger but found OM Group was entitled to the payment of certain fees from Harbinger. “>Harbinger F&G, LLC v. OM Group (UK) Limited, Case No. 12 Civ. 05315 (CRK) (USDC S.D.N.Y. Mar. 18, 2015).

This post written by Leonor Lagomasino.

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