Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

UK COURT OF APPEALS REVERSES DECISION ON TIMELINESS OF NOTIFICATION OF LOSS

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On December 6, 2006, we reported on the decision of a UK court, which interpreted a provision requiring notice to a reinsurer of a claim. The issue was whether the reinsured had knowledge of a loss when its stock price fell due to accounting restatements. While the Commercial Court decided that such activity did not amount to knowledge of a loss, the Court of Appeals disagreed. The UK Court of Appeal therefore reversed, finding that the notification of loss was late under the requirements of the reinsurance agreement. AIG Europe v. Faraday Capital Limited [2007] EWCA Civ 1208 (Nov. 22, 2007).

This post written by Rollie Goss.

RIGHT TO CLASS ARBITRATION WITHIN PROVINCE OF ARBITRATOR, NOT COURT

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This dispute relates to whether a district court has authority to make a class arbitration determination based on agreements entered into between the respective parties. The court concluded that only the arbitrator had authority to determine whether the arbitration provisions permitted class arbitration.

Respondents filed a class action complaint with the American Arbitration Association against Petitioner, Scout, alleging that Scout failed to properly compensate respondents pursuant to agreements signed between the parties and deceived respondents by engaging in unlawful business practices. All parties are involved in publishing information about high school, college, and professional sports. The complaint was filed on behalf of approximately 300 persons, companies, or other entities that owned or provided content for a website owned by Scout.

Respondents filed a ‘clause construction’ motion with the AAA arbitrator, seeking a ruling that class arbitration was authorized. Scout requested a stay and filed the present petition requesting the district court stay the class proceeding and compel respondents to pursue their arbitration claims individually. Recognizing that the Supreme Court, in Green Tree v. Bazzle, was faced with an arbitration provision that was silent on the issue of whether class arbitration was permitted, the district court concluded that the “dispositive issue before this Court is whether Green Tree applies to the facts of this case.” The court concluded that the present case was factually analogous and granted respondent’s motion to dismiss, leaving the question of whether to permit class arbitration to the arbitrator. Scout.com v. Bucknuts, Case No. 07-1444 (USDC W.D. Wash. Nov. 16, 2007).

This post written by Lynn Hawkins.

CONSECO AND J. C. PENNEY SETTLE DISPUTE OVER SALE OF INSURANCE COMPANY

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On November 28, 2007, we reported on a dispute involving the sale by Conseco Insurance Company of two insurance subsidiaries to J. C. Penney. The post described a decision transferring a case pending in Conseco’s home venue of Indiana to California, where another action relating to the dispute was pending. Less than two months after the transfer order was entered, the parties filed a notice of settlement of their dispute. No details are available about the settlement. Conseco Ins. Co. v. J. C. Penney Life Ins. Co., Case No. 07-6901 (USDC C.D. Cal. 11/8/2007).

This post written by Rollie Goss.

REINSURANCE POLICIES DEEMED DISCOVERABLE IN INSURANCE COVERAGE DISPUTE

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This case involves an insurance coverage dispute based on Illinois state law that arose when Defendants denied coverage under five Commercial Crime Insurance Policies insuring Plaintiffs. Defendants asserted that the denial of coverage was justified because plaintiffs failed to comply with notice and loss provisions of the policies. Plaintiffs alleged those clauses were ambiguous.

The present matter came before the court on plaintiff’s motion to compel production of certain documents and information pertaining to Defendant’s reinsurance information. Noting the relatively low threshold necessary to make materials discoverable, the court ruled that such information may be used to support the plaintiff’s attempt to prove an ambiguity in the insurance policy. The court also relied on Seventh Circuit precedent holding that reinsurance agreements are discoverable and the fact that the insurers did not raise an objection to the discoverability of the policies in their briefs or at oral argument. Machinery Movers v. Fidelity and Deposit Co., Case No. 06-C-2539 (USDC N.D. Ill. Oct. 19, 2007).

This post written by Lynn Hawkins.

FIRST CIRCUIT AFFIRMS DISTRICT COURT’S ORDER TO ARBITRATE AND ENFORCEMENT OF ARBITRAL AWARD

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In 2006, the federal district court in Maine confirmed an arbitration award in favor of Sleeper Farms (plaintiff potato farmers) arising out of a dispute with Agway, an agricultural cooperative. Plaintiffs, dissatisfied with their limited victory, appealed to the First Circuit. Plaintiffs argued that the district court erred in referring the dispute to the arbitrator in 2002, and erred again in 2006 when it confirmed the arbitrator’s award.

With respect to the 2002 order, Sleeper Farms argued that the order was unenforceable for two reasons: (1) that the contracts were illegal and (2) that Agway waived its right to arbitrate. The Court rejected both arguments finding that the illegality argument goes to the validity of the substantive provisions of the contract, not to arbitrability. Specifically, the court held that as a matter of federal law, the arbitration clause is unaffected even if the substance of the contract is otherwise void. Secondly, the court recognized that a claim of waiver may be a genuine challenge to arbitrability, but in this case the requirements of waiver were not met.

The First Circuit also rejected Sleeper Farms’ argument that the 2006 arbitration award should be vacated. Specifically, the court concluded that plaintiffs could not satisfy their claim that the arbitrator acted in manifest disregard of the law or that the arbitral award was contrary to public policy. Sleeper Farms v. Agway, Inc., No. 06-2694 (1st Cir. Nov. 2, 2007).

This post written by Lynn Hawkins.