Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

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Week's Best Posts

FEDERAL COURT DISMISSES ACTION TO DISQUALIFY COUNSEL IN REINSURANCE ARBITRATION FOR FAILURE TO SATISFY AMOUNT IN CONTROVERSY REQUIREMENT

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Plaintiff and defendant were parties to a contract under which dispute arose and arbitration was demanded. Plaintiff filed an action in state court seeking to disqualify defendant’s counsel due to an alleged conflict of interest. Defendant removed to federal court. The federal court sua sponte raised the issue of whether the amount in controversy requirement for a diversity action was satisfied. After briefing on the issue, the court held that the requirement was not met, and that the exposure in the underlying arbitration was not the appropriate measure for amount in controversy, but rather only the financial impact of having counsel disqualified and retaining new counsel was implicated. The removing defendant failed to establish the requirement and remanded the case to state court. National Casualty Co. v. Utica Mutual Insurance Co., No. 12-cv-657-bbc (USDC W.D. Wis. Dec. 12, 2012).

This post written by John Pitblado.

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REINSURERS’ ACTION SEEKING TO VOID REINSURANCE AGREEMENT TRANSFERRED TO PLACE OF RELATED ARBITRATION

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Plaintiffs, five Lloyd’s of London underwriters, filed suit in Ohio federal court seeking a declaration that an alleged reinsurance agreement between them and defendant Stonebridge Casualty Insurance Company’s predecessor in interest was invalid because plaintiffs had no knowledge of it. Plaintiffs’ Ohio action was filed after Stonebridge had successfully moved in Florida federal court to compel arbitration of disputes arising under the agreement. Stonebridge moved to have the Ohio action transferred to Florida or dismissed. In response, plaintiffs argued that the Florida court lacked jurisdiction due to the presence of an Ohio forum selection clause in the reinsurance agreement. The court found that this clause did not strip the Florida court of its diversity jurisdiction. The court chastised plaintiffs for attempting to rely on a forum selection clause in a contract that they had not even acknowledge existed. The Ohio court similarly rejected plaintiffs’ argument that venue was improper in Florida, given that many of the relevant negotiations occurred in Florida, and key witnesses and documents were located in Florida. Certain Underwriters at Lloyd’s, London v. Stonebridge Casualty Insurance Co., Case No. 2:12-cv-160 (USDC S.D. Ohio Dec. 12, 2012).

This post written by Ben Seessel.

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FEDERAL COURT HOLDS THAT JOINT VENTURE AGREEMENT TO PURCHASE, RENOVATE, AND SELL REAL PROPERTY IS SUBJECT TO THE FAA

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Bilbo, a Mississippi resident, and McNally, a Floridian, entered into a joint venture agreement to purchase, renovate, and resell residential property located in Jackson, Mississippi. The agreement contained an arbitration clause. After a dispute arose, Bilbo moved to compel arbitration in federal district court. McNally moved to dismiss on the grounds that the FAA did not apply because the parties’ agreement did not concern “matters of interstate commerce.” The court held that the FAA applied, given that Congress’ power to regulate commerce is broadly construed and that McNally, a Florida resident, agreed to purchase and renovate property in Mississippi, a different state. Bilbo v. McNally, Case No. 12-cv-00502 (USDC S.D. Miss. Nov. 15, 2012).

This post written by Ben Seessel.

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UNITED STATES SUPREME COURT GRANTS CERTIORARI IN TWO CASES INVOLVING PUTATIVE CLASS ACTIONS AND ARBITRATION

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The Supreme Court has accepted certiorari review of two cases involving putative class actions and arbitration. In the first case, American Express Company v. Italian Colors Restaurant, the Court agreed to review the question whether the FAA permits courts to invalidate arbitration agreements on the ground that the agreement precludes class arbitration of federal statutory claims. The court of appeals had invalidated an arbitration provision because it found that the provision effectively precluded plaintiffs from pursuing protections provided by federal antitrust laws. In the Second matter, Oxford Health Plans LLC v. Sutter, the Court agreed to review whether, under Stolt-Nielsen, an arbitrator acts within his powers pursuant to the FAA by determining that parties affirmatively agreed to authorize class arbitration based solely on the use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under a contract.

American Express Co. v. Italian Colors Rest., No. 12-133 (U.S., cert. granted, Nov. 9, 2012); Oxford Health Plans LLC v. Sutter, No. 12-135 (U.S., cert. granted Dec. 7, 2012)

This post written by Ben Seessel.

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NAIC REINSURANCE TASK FORCE DECEMBER 2012 MEETING

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On December 1, 2012, the NAIC’s Reinsurance (E) Task Force convened at the 2012 NAIC Fall Meeting to discuss the status of several regulatory issues. The NAIC staff reported that 11 states have adopted some form of the NAIC Model Credit for Reinsurance Law and Regulation, which allows for reduced collateral requirements for certified reinsurers. The Model Law and Regulation were approved at the Fall Meeting as optional standards, meaning states may continue to require 100% collateral. The Task Force also exposed its Draft NAIC Process for Developing and Maintaining the List of Qualified Jurisdictions for a 45-day comment period and noted that 4 jurisdictions, Bermuda, Germany, Switzerland and the UK, will receive expedited review. Another discussion focused on a survey of states regarding the Dodd-Frank’s Nonadmitted and Reinsurance Reform Act, which brought to light concerns about how to treat reinsurers that have large segments of insurance business for purposes of solvency regulation.

This post written by Abigail Kortz.

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