A court recently found in a pair of cases that an insurance agent’s receipt of emails containing hyperlinks and boilerplate footers referencing contractual terms, including a forum selection clause, did not provide adequate notice to qualify as a binding agreement. The underlying dispute was filed in federal court between two Lloyd’s syndicates and their insurance agent, Walnut Advisory Corporation, which, in turn, sought indemnification from Miller Insurance Services Limited, the insurance intermediary between Walnut and the syndicates. Miller responded by seeking dismissal on the basis that the business relationship between Walnut and Miller was governed solely by separate agreements providing for jurisdiction in English courts. The court denied Miller’s motions, finding an implied-in-fact contract governed the parties’ relationship and that the terms of the Miller agreements were not part of that contract. The court refused to apply the Miller agreements because (1) there was no evidence Walnut received mailed copies of the agreements; and (2) hyperlinks and email footer references to the agreements in electronic correspondence with Walnut were not “immediately visible” and therefore did not qualify as adequate notice to Walnut to constitute binding terms. The court also found that Miller’s client website, which referenced the Miller agreements in a manner that could qualify as “immediately visible,” was still insufficient notice because Walnut had access to the website only after the business relationship between it and Miller had been established. Liberty Syndicates at Lloyd’s v. Walnut Advisory Corp., Case No. 3:09-cv-01343 (USDC D.N.J. Nov. 16, 2011); Syndicate 1245 at Lloyd’s v. Walnut Advisory Corp., Case No. 3:09-cv-01697 (USDC D.N.J. Nov. 16, 2011).
This post written by Michael Wolgin.