Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

Illinois Appellate Court Holds Nebraska Arbitration Act Reverse Preempts Federal Arbitration Act and Renders Arbitration Clause in Reinsurance Agreement Unenforceable

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An Illinois appellate court recently affirmed a lower court decision granting summary judgment and denying defendant insurers’ motion to compel arbitration where Nebraska law governed, reverse preempted the Federal Arbitration Act (FAA), and rendered a mandatory arbitration provision in a reinsurance agreement unenforceable. Plaintiffs were required to enter reinsurance agreements to obtain workers’ compensation insurance and the agreement at issue contained provisions requiring mandatory arbitration of disputes and the application of Nebraska law. A dispute arose over the cost of the insurance policies and plaintiffs filed suit for various unfair and deceptive business practices violations. Defendants served an arbitration demand on plaintiffs, who refused to arbitrate. The lower court accepted plaintiffs’ argument that the arbitration clause was invalid under the Nebraska Arbitration Act (NAA) and therefore denied defendants’ motion to compel arbitration and granted summary judgment to plaintiffs.

On appeal, the appellate court affirmed. First, the court rejected defendants’ argument that plaintiffs were required to arbitrate because they failed to “specifically and directly” challenge delegation clauses in the reinsurance agreement. In defendants’ view, the delegation clauses precluded judicial determination of arbitrability based in part on the Supreme Court’s decision in Rent-A-Center, West, Inc. v. Jackson. The court ultimately concluded that the plaintiffs had challenged the delegation clauses specifically enough via their arguments on the arbitration provision, and therefore the lower court was entitled to consider the arbitrability challenge rather than compel arbitration on that issue.

Second, the court found the NAA applied and invalidated the arbitration clause of the reinsurance agreement. The court applied the three-part test to determine whether the McCarran-Ferguson Act allows a state law to reverse preempt a federal statute and concluded that: (1) the FAA does not specifically relate to the business of insurance, (2) the relevant provision of the NAA was enacted to regulate the business of insurance, and (3) the NAA applied in this case; thus the NAA reverse preempted the FAA. Because the NAA prohibits arbitration of agreements concerning or relating to insurance, the court held the arbitration clause was unenforceable and the lower court did not err in denying defendants’ motion to compel arbitration.

Onken’s Am. Recyclers, Inc. v. Cal. Ins. Co., Case No. 4-18-0240 (Ill. App. Ct. Sept. 10, 2018).

This post written by Thaddeus Ewald .

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UK Court Considers Whether Payment of Insurance Claim Violates Iran Sanctions

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A court in the United Kingdom has issued a ruling considering the intersection of a clause in an insurance agreement meant to protect the insurer from obligations that would violate international sanctions regimes and the rapidly changing realities of US sanctions against Iran.

At the heart of the case was an insurance agreement providing coverage for cargo carried on two ships that transported goods to Iran in August 2012. Upon arrival in Iran, certain cargo covered by the insurance agreement was put into storage, from which it was stolen in September or October 2012. The insured made a claim based on this loss in March 2013, but the insurer denied coverage on the basis of clause in the agreement providing that “no (re)insurer shall be liable to pay any claim . . . to the extent that the . . . payment of such claim . . . would expose that (re)insurer to any sanction, prohibition or restriction under . . . the trade or economic sanctions, laws, or regulations of . . . the United States of America.”

The insurer argued that paying this claim would expose it to sanctions based on US sanctions barring the provision of services to Iran. The parties agreed that insurance is a covered service and that the insurer was prohibited by these sanctions from paying this claim when it was made in March 2013. The insurer argued that its obligations were extinguished at that time, but the insured argued that later developments allowed the insurer to pay the claim. Specifically, in 2015, the US entered in an agreement with Iran called the Joint Comprehensive Plan of Action (JCPOA) under which the sanctions were relaxed. Under provisions of the JCPOA that went into effect in January 2016, the insurer could have paid the claim but delayed doing so while awaiting confirmation from the US and UK governments that this was allowed. Then, in May 2018, President Trump announced that the US was withdrawing from the JCPOA effective June 27, 2018, with a wind down provision allowing certain transactions to take place through November 4, 2018, and the parties disagreed regarding whether paying this claim was among the permitted transactions.

The court made several significant findings. First, it found that the fact that payment was prohibited at the time the claim was made in 2013 did not extinguish the insurer’s obligation to pay the claim, but instead only suspended that obligation until such time as the law changed to allow such payment to be made, as happened in 2016. Second, it found that payment of the claim was a permitted transaction under the wind down provision of the US withdrawal from the JCPOA. Finally, it interpreted the provision excusing the payment of the claim to the extent it “would expose” the insurer to sanctions to mean that the insurer had the burden to show that the payment was prohibited under the sanctions law, and not merely that there was a risk that a relevant government entity would interpret the payment to be prohibited. The court therefore decided that the insured was entitled to payment of the claim.

Mamancochet Mining Ltd. v. Aegis Managing Agency Ltd., [2018] EWHC 2643 (Comm)

This post written by Jason Brost.

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Fifth Circuit Affirms Dismissal Without Prejudice After Plaintiff Compelled to Arbitrate Refuses To Do So

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The Fifth Circuit affirmed a dismissal without prejudice of a plaintiff’s putative class action related to a multi-level marketing program selling electricity after the plaintiff refused to submit his claims to arbitration despite the district court compelling arbitration and staying the case pending arbitration. The case languished for over a year after the district court’s order compelling arbitration while plaintiff refused to arbitrate the putative class claims. Twice the court requested status reports in which the plaintiff indicated his failure to arbitrate and lack of intent to do so, at which point the district court ordered plaintiff to show cause why the case should not be dismissed for lack of prosecution. The plaintiff responded by reiterating his disagreement with the court’s conclusions as to arbitration, his intent not to arbitrate, and his readiness to litigate the case to conclusion before the court. The court ultimately dismissed the case without prejudice for lack of prosecution.

On a threshold issue, the Fifth Circuit concluded that it had appellate jurisdiction over the dismissal as a “final decision with respect to an arbitration.” Defendants argued that plaintiff, through his response to the show-cause order, voluntarily dismissed the case, which is not a final appealable decision. The court disagreed, holding that plaintiff’s inaction in failing to submit his claims to arbitration was not sufficient to constitute voluntary dismissal. Specifically, the court determined that plaintiff’s response to the show-cause order did not serve as notice of dismissal, but rather were “statements of inaction,” and therefore did not constitute a voluntary dismissal.

Additionally, the court found that it could appropriately hear an appeal of a dismissal without prejudice. The court surveyed circuit precedent and distinguished the present case from those finding no appellate jurisdiction over dismissals without prejudice. Here, there were no concerns about piecemeal appeals of interlocutory issues because the dismissal concluded the litigation on the merits. Nor, as the court previously established, was the dismissal voluntary such that the litigant was voluntarily dismissing as a tactic to seek expedited appeal of interlocutory issues.

Finally, the Fifth Circuit affirmed the lower court’s use of its discretion in dismissing for failure to prosecute. Regardless of whether the heightened standard for dismissal without prejudice—where statutes of limitations risk barring any future litigation—applied, the court held that defendants would prevail. Dismissal was warranted for failure to prosecute because plaintiff demonstrated a “clear record of delay and contumacious conduct” by persistently refusing to arbitrate the claims as the district court so ordered and explicitly stating it would not pursue arbitration. Thus, the Fifth Circuit concluded the lower court acted within its discretion and affirmed.

Griggs v. S.G.E. Mgmt., L.L.C., No. 17-50655 (5th Cir. Sept. 27, 2018).

This post written by Thaddeus Ewald .

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Judge Rejects Ameriprise’s Request to Vacate Arbitration Award, But Reverses Award of Attorney’s Fees

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Ameriprise sought vacatur of the award under grounds set forth in the FAA, namely fraud, evident partiality, arbitrator misconduct, and exceeding of powers. In refusing Ameriprise’s request, the court first noted that judicial review of an arbitral award is “among the narrowest known in the law” and is “exceedingly deferential.” This standard “ensures arbitration’s essential virtue of resolving disputes straight away is maintained and avoids costly full-bore legal and evidentiary appeals.” With respect to Ameriprise’s claim that there was “evident partiality” on the part of one of the arbitrators, the court rejected it due to its “broad and speculative nature” and because the facts underlying the claim could have been discovered prior to the arbitration by “the most basic method of contemporary due diligence: a Google search.” With regard to Ameriprise’s argument that the panel engaged in “misconduct” by declining to give due weight to evidence in support of its case, the court declined Ameriprise’s invitation to “conduct a post-mortem of the arbitrators’ cognition processes and how they reached their decision.” As to Ameriprise’s argument regarding fraud, the court held that Ameriprise failed to present “clear and convincing evidence.” The court, however, did reverse the arbitration panel’s award of $123,712 in attorney’s fees, which the court declared was either in excess of the powers of the panel, or in manifest disregard of the law. Ameriprise Financial Services, Inc. v. Brady, Case No. 18-10337-DPW (USDC D. Mass. Sept. 11, 2018).

This post written by Benjamin E. Stearns.

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Court Finds New York Convention Applies to Arbitration Agreement in Insurance Policy That Would Otherwise be Invalid Under State Law

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Lloyd’s issued an insurance policy with an arbitration provision, covering direct physical loss or physical damage caused by windstorm and/or hail. The insured filed suit in state court alleging nonpayment of claims for damages from Hurricane Isaac. Lloyd’s removed to federal court, asserting that the court had original subject matter jurisdiction for the arbitration agreement in the policy pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention. The insured sought remand, arguing that the New York Convention did not apply.

The court denied remand, finding that the Convention applied because the dispute arose out of an insurance policy, a commercial legal relationship, with Lloyd’s, a citizen of the United Kingdom. The court also rejected the insured’s argument that the “Conformity to Statute” clause effectively amended the policy to comply with Louisiana state law, which would result in the arbitration provision being rendered unenforceable. The court held that because the Convention preempts state law, state law is inapplicable and cannot change the policy. The court also rejected the insured’s arguments that the Convention was reverse-preempted by the McCarran-Ferguson act, and that the Convention applies only to instances of enforcement of foreign arbitration awards. The plaintiff has appealed the court’s rulings. Gulledge v. Certain Underwriters at Lloyd’s, London, Case No. 2:18-cv-06657 (USDC E.D. La. Sept. 27, 2018); Notice of Appeal (Oct. 2, 2018).

This post written by Gail Jankowski.

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