Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

SEVENTH CIRCUIT UPHOLDS DENIAL OF MOTION TO COMPEL ARBITRATION

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Applying Wisconsin law, the Seventh Circuit Court of Appeals determined the parties did not have an agreement to arbitrate because, even though their excess/reinsurance agreement contained “follow form” language, and the underlying contract to which the policy followed form contained an arbitration provision, it nevertheless “merely codifie[d] a procedure whereby the parties can potentially agree to arbitrate.” The procedure required: (1) a demand by the insured; (2) a dispute between the insurers about liability; (3) payment by each insurer of half the disputed amount; and (4) acceptance of payment by the insured.

Although the insured and the insurers on the underlying policy met these steps prompting arbitration, none occurred with respect to the excess/reinsurance policy. The excess/reinsurance insurer never received a request for payment from the insured or made a payment to the insured. As such, the Court determined the parties did not agree to arbitrate a dispute with the excess/reinsurance insurer.

State of Wisconsin Local Government Property Ins. Fund v. Lexington Ins. Co., No. 15-1973 (7th Cir. Oct. 21, 2016).

This post written by Nora A. Valenza-Frost.

See our disclaimer.

SPECIAL FOCUS: DODD-FRANK IN A TRUMP ADMINISTRATION

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There is considerable uncertainty as to how President-elect Trump may proceed with respect to the regulation of the financial services sector of the U.S. economy.  We present one possible approach, based on a pending bill, in a Special Focus article, What Might Be the Future of the Dodd-Frank Act’s Insurance and Reinsurance-Related Provisions in a Trump Administration.

This post written by Rollie Goss.
See our disclaimer.

DIVORCE CASE SPANNING CONTINENTS SPAWNS DISCOVERY SANCTIONS FOR COMPANY’S FAILURE TO PRODUCE DOCUMENTS PHYSICALLY LOCATED ABROAD

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The Eleventh Circuit affirmed a district court’s order compelling discovery and awarding contempt sanctions after a man refused to answer discovery requests and defied orders requiring production of documents in a divorce proceeding. After filing for divorce in Russia, the plaintiff sought discovery in countless courts across Europe and the Caribbean searching for documents she believed would reveal her husband’s secret ownership of assets in a Bahamian corporation. Plaintiff ultimately sought relief in federal district court in Georgia seeking discovery against an associated Atlanta corporation. A magistrate judge ordered the company to respond to the requests for production, but after an initial round of non-compliance and accompanying sanctions, it only produced twenty-three pages of documents.

The courts dealt extensively with the interpretation of 28 U.S.C. § 1782, which authorizes district courts to order discovery for use in a proceeding in a foreign tribunal upon satisfaction of certain requirements. The Eleventh Circuit addressed the first issue, defendant’s extraterritoriality argument that § 1782 does not reach documents located in foreign countries, and rejected it as a matter of first impression. It read the statute in conjunction with the Federal Rules of Civil Procedure to allow discovery of materials outside the United States so long as they are in the possession or control of the responding party. The Eleventh Circuit affirmed the district court’s broad interpretation of the “control requirement” to include situations where a company has the legal right to obtain documents requested and where the affiliated corporate entities have actually shared responsive information and documents in their normal course of business dealings. Finding sufficient circumstantial evidence that the Atlanta company had “control” over its Bahamian counterpart, the court affirmed and paved the way for the disclosure of documents the plaintiff had been searching for all over the world.

Sergeeva v. Tripleton Int’l Ltd., No. 15-13008 (11th Cir. Aug. 23, 2016).

This post written by Thaddeus Ewald, a law clerk at Carlton Fields in Washington, DC .

See our disclaimer.

SOUTHERN DISTRICT OF INDIANA DETERMINES PARTIES’ DISPUTE REGARDING NONPAYMENT OF BOND BY SURETIES WAS NOT WITHIN THE SCOPE OF ARBITRATION CLAUSE

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In order to be arbitrable, a dispute must fall within the scope of the parties’ operative arbitration agreement. Here, a non-signatory to the relevant agreement was seeking to “invoke an arbitration provision that was not expressly incorporated into a contract to which the non-signatory is a party”. Finding that authority for this proposition was absent from the movant’s papers, a federal court denied a party’s motion to compel.

The co-surety non-signatories were defendants in the action by way of their nonpayment of a payment bond, the amount of which was undisputed. The service agreement which addressed the work to be performed, for which the co-sureties issued a payment bond, contained an arbitration provision to which they were not parties. Ultimately, the Court determined the “arbitration provision cannot be read to encompass a dispute of this nature” and that there was no evidence at the time the service agreement was executed that the parties “intended for the arbitration provision to cover an unnamed surety’s failure to perform under a yet-to-be-secured payment bond” for an undisputed sum. Thus, the co-sureties’ motion to dismiss or in the alternative stay litigation and compel arbitration was denied.

Aztech Engineering Group, Inc. et al. v. Liberty Mut. Ins. Co., et al., 1:16-cv-01657 (USDC S.D. Ind. Oct. 1, 2016)

This post written by Nora A. Valenza-Frost.

See our disclaimer.

SUIT AGAINST REINSURER IN CALIFORNIA DISMISSED FOR LACK OF PERSONAL JURISDICTION

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A federal district court in California recently dismissed a lawsuit brought by a cedent against its reinsurer for lack of a personal jurisdiction, where the reinsurer’s only contacts with the state derived from the fact that the operative reinsurance certificates were entered into with a California company and that it attempted resolve the claims at issue by engaging in certain activities in the state.

The lawsuit centered on certain reinsurance certificates between the American Insurance Company (“TAIC”) and R&Q Re, a Pennsylvania corporation, regarding coverage for underlying asbestos claims implicating certain excess policies reinsured by the certificates. When R&Q declined to pay amounts billed under the certificates based upon insufficient notice, TAIC commenced suit, and R&Q moved to dismiss for lack of jurisdiction.

In dismissing the action, the court found that it lacked both general and specific personal jurisdiction over the dispute. With regard to the former, the court held that it lacked general jurisdiction because R&Q Re is a Pennsylvania corporation, even though it is licensed to do business in California and maintains a registered agent in the state for purposes of service of process. As for the latter, the court found that the fact that the reinsurance certificates were entered into with TAIC, a California company, was insufficient to warrant specific personal jurisdiction. Similarly, R&Q’s contacts with TAIC purely related to its resolution of the subject claims were insufficient, even including a visit to California to conduct an audit where the visit occurred because TAIC refused to send files out-of-state. American Ins. Co. v. R&Q Reinsurance Co., Case No. 16-03044 (USDC N.D. Cal. Oct. 12, 2016).

This post written by Thaddeus Ewald, a law clerk at Carlton Fields in Washington, DC .

See our disclaimer.