The U.S. District Court for the Southern District of Texas recently compelled arbitration against insurers but not brokers related to a commercial insurance dispute.
After Hurricane Harvey decimated Houston, an insured sought coverage under its commercial insurance policy. The insurers, several of whom were foreign, denied coverage. The insured filed suit against the insurers based on the denial and an alleged failure to investigate. It also sued the brokers who developed the policy on the theory that the brokers had failed to disclose that the policy contained an allegedly “unique and extremely onerous” arbitration clause.
The insurers and brokers sought to compel arbitration under that clause. The district court granted the insurers’ motion but denied the brokers’ motion and stayed the action.
The court concluded that the requirements of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards were met with respect to the insurers and rejected the insured’s argument that the Convention’s exception where the arbitration agreement is “null and void” applied. The insured contended that the arbitration agreement was “unconscionable” under Texas law because it required arbitration to occur in and be subject to the law of New York, set strict limitations on damages, and required the tribunal to comprise senior underwriters or claims handlers. The court explained that the “null and void” exception “is limited to standard breach-of-contract defenses capable of being applied neutrally on an international scale – such as fraud, mistake, duress, waiver, and the like.” There was no evidence of that here.
With respect to the broker defendants, the court noted that they were not signatories to the insurance agreement and its arbitration clause and that non-signatories could compel arbitration in limited circumstances. The court rejected the contention that “intertwined-claims estoppel” applied, explaining that the insured’s complaint did not establish a sufficiently close relationship between the insurers and the brokers for that doctrine to apply. The court also rejected “direct-benefits estoppel,” explaining that the doctrine was not applicable because the insured’s claims against the brokers related to alleged misrepresentations and omissions in the insurance contract’s development and did not assert breaches of the insurance policy. “[N]o interpretation of the insurance policy [was] necessary to adjudicate the misrepresentation claims” against the brokers.
The court nevertheless stayed court proceedings pending completion of the arbitration.
5556 Gasmer Management LLC v. Underwriters at Lloyd’s, London, No. 4:19-cv-00974 (S.D. Tex. May 29, 2020).