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.