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New reinsurance-related and arbitration developments from Carlton Fields

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Week's Best Posts

RIGHT TO CLASS ARBITRATION WITHIN PROVINCE OF ARBITRATOR, NOT COURT

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This dispute relates to whether a district court has authority to make a class arbitration determination based on agreements entered into between the respective parties. The court concluded that only the arbitrator had authority to determine whether the arbitration provisions permitted class arbitration.

Respondents filed a class action complaint with the American Arbitration Association against Petitioner, Scout, alleging that Scout failed to properly compensate respondents pursuant to agreements signed between the parties and deceived respondents by engaging in unlawful business practices. All parties are involved in publishing information about high school, college, and professional sports. The complaint was filed on behalf of approximately 300 persons, companies, or other entities that owned or provided content for a website owned by Scout.

Respondents filed a ‘clause construction’ motion with the AAA arbitrator, seeking a ruling that class arbitration was authorized. Scout requested a stay and filed the present petition requesting the district court stay the class proceeding and compel respondents to pursue their arbitration claims individually. Recognizing that the Supreme Court, in Green Tree v. Bazzle, was faced with an arbitration provision that was silent on the issue of whether class arbitration was permitted, the district court concluded that the “dispositive issue before this Court is whether Green Tree applies to the facts of this case.” The court concluded that the present case was factually analogous and granted respondent’s motion to dismiss, leaving the question of whether to permit class arbitration to the arbitrator. Scout.com v. Bucknuts, Case No. 07-1444 (USDC W.D. Wash. Nov. 16, 2007).

This post written by Lynn Hawkins.

REINSURANCE POLICIES DEEMED DISCOVERABLE IN INSURANCE COVERAGE DISPUTE

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This case involves an insurance coverage dispute based on Illinois state law that arose when Defendants denied coverage under five Commercial Crime Insurance Policies insuring Plaintiffs. Defendants asserted that the denial of coverage was justified because plaintiffs failed to comply with notice and loss provisions of the policies. Plaintiffs alleged those clauses were ambiguous.

The present matter came before the court on plaintiff’s motion to compel production of certain documents and information pertaining to Defendant’s reinsurance information. Noting the relatively low threshold necessary to make materials discoverable, the court ruled that such information may be used to support the plaintiff’s attempt to prove an ambiguity in the insurance policy. The court also relied on Seventh Circuit precedent holding that reinsurance agreements are discoverable and the fact that the insurers did not raise an objection to the discoverability of the policies in their briefs or at oral argument. Machinery Movers v. Fidelity and Deposit Co., Case No. 06-C-2539 (USDC N.D. Ill. Oct. 19, 2007).

This post written by Lynn Hawkins.

INSURANCE COMPANY LOSES ARBITRABILITY ARGUMENT IN SECOND VENUE

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In a November 7, 2007 post to this blog, we reported on a decision of a US District Court compelling arbitration with respect to a reinsurance agreement. That opinion did not reveal that the Gaffer Insurance, the plaintiff/reinsured, had previously sued the same defendant on essentially the same claims in Pennsylvania state court. On May 22, 2006, the state trial court denied a request to compel arbitration of the disputes, finding that a service of suit provision made the arbitration provision permissive rather than mandatory. For an undisclosed reason, Gaffer Insurance then filed the federal court action on March 23, 2007, alleging different legal theories but the same basic wrongdoing, i.e., the refusal of the reinsurer, Discover Re, to partially release letters of credit securing the reinsurance obligation. Discover Re convinced the federal district judge to compel arbitration of the dispute. A Pennsylvania court of appeal recently reversed the state trial court decision, finding that the arbitration provision was mandatory, and that arbitration should have been compelled. The reasoning and analysis of the federal district court opinion and the state appellate court opinion are substantially the same, yet neither acknowledges the existence of the other lawsuit. One wonders whether the fact that there were two separate lawsuits pending between the same parties, involving the same issues, was disclosed to either court. Gaffer Ins. Co. v. Discover Reinsurance Co., 2007 Pa. Super 339, No. 1023 MDA 2006 (Super. Ct. Nov. 16, 2007).

This post written by Rollie Goss.

DISPUTE RELATING TO REINSURANCE IN SALE OF INSURANCE COMPANY TRANSFERRED TO COURT HEARING RELATED MATTER

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Conseco Insurance Company sold two insurance subsidiaries to JC Penney, and under the terms of the sale Conseco retained a certain portion of contingent indemnity liability on policies issued prior to the sale. A condition precedent to Conseco’s reimbursement obligation was the submission by Penney of claims on such policies to Transit Casualty Company under a reinsurance agreement. Disputes arose related to the sale and were heavily litigated in the United States District Court for the Central District of California and the Ninth Circuit. When certain claims were dismissed, with the suggestion that they be refilled by Conseco as a separate suit, Conseco refilled them in Indiana state court. After the claims were removed, Penney moved to dismiss, in part based upon the doctrine of forum non conveniens. The court treated the motion as a motion to transfer and transferred the case to the court in California, which is still hearing other claims relating to the sale. Conseco Insur. Co. v. J. C. Penney Life Ins. Co., Case No. 06-1229 (USDC S.D.Ind. Sept. 27, 2007).

This post written by Rollie Goss.

CLASS ACTION SHAREHOLDER LAWSUIT AGAINST SCOTTISH RE STAYS ALIVE, THOUGH NOT INTACT

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A New York federal district judge recently ruled on motions to dismiss filed by all defendants in a putative class action shareholder lawsuit against reinsurance company Scottish Re and others. The Complaint alleged violations of federal securities laws in connection with Scottish Re’s accounting for deferred tax assets in its financial statements and its certifications of the adequacy of the Company’s internal controls. The judge dismissed claims alleged against the accounting firm Ernst & Young (for failing to adequately establish scienter), but denied the remainder of the motions to dismiss. In re Scottish Re Group Securities Litigation, Case No. 06-5853 (USDC S.D.N.Y. Nov. 2, 2007).

This post written by Lynn Hawkins.