In a case involving an insurer’s attempt to avoid payment of a claim under an underinsured motorist policy after a car accident on statute of limitations grounds, the Eastern District of Pennsylvania resorted to the basics of contract law in denying the insurer’s motion for summary judgment and granting the policyowner’s petition to compel arbitration. Although the parties agreed that Pennsylvania has a four-year statute of limitations for contractual actions, they disagreed as to when the limitations period begins to run in an underinsurance case. Sitting in diversity, and absent any rulings on point by the state’s highest court, the court determined that, based on relevant state and Third Circuit precedent, the Pennsylvania Supreme Court likely would rule that the statute of limitations begins to run on an underinsurance claim when the insured actually settles with the underinsured driver. Thus, consistent with both the purpose of consent-to-settlement provisions, which give insurers an opportunity to exercise their subrogation rights prior to the formation of binding settlement agreements, and contract law, the statute of limitations began to run on the date the policyowner accepted the tortfeasor’s settlement offer by signing the release absolving the tortfeasor from further liability. , Case No. 12-5700 (E.D. Pa. Oct. 25, 2013).
A federal court in Missouri denied a defendant’s motion to compel arbitration. Two contracts were at issue. The first was a contract between the plaintiff, a pharmacy benefits manager, on the one hand, and a network of pharmacies – in which defendant, a chain of pharmacies in Oklahoma, participated – on the other. This contract governed the payment of pharmacy claims and did not include an arbitration provision. A separate contract directly between the plaintiff and defendant regarding claims audits contained an arbitration agreement. The plaintiff made claim for reimbursement for certain claims under the former agreement, and the defendant then initiated an arbitration in Missouri. The plaintiff resisted arbitration, and filed an action in court challenging arbitration on the grounds that the contract at issue contained no arbitration provision. The court agreed, noting that the evidence submitted made clear that the claims pertained only to the agreement with no arbitration agreement, and that therefore the claims could and should proceed in court. , No. 4:12-cv-01035 (USDC E.D. Mo. Sept. 30, 2013).
A Florida circuit court recently denied defendants’ motions for summary judgment in a suit filed by a Costa Rican insurer against two reinsurance brokers – one from the United States and one from England – alleging breach of contract and a host of claims involving negligence, breach of fiduciary duty, and misrepresentation. The crux of the plaintiff’s complaint is that the brokers’ commission earnings were unreasonable, excessive, and undisclosed because a less-than-$200,000 flat commission bid for the brokerage business during an initial bidding stage (which was allegedly terminated) grew to nearly $2 million in a subsequent bidding stage wherein the bid quoted only a total price of over $12 million, without separate premium and brokerage commission line items. The defendants’ motions asserted that Florida law does not impose limits on broker compensation, particularly in arms-length transactions between sophisticated parties, and does not mandate voluntary disclosure of brokers’ earnings, lest a contract requires it. In addition, the insurer chose to award its business as it did because the defendants presented the best price, terms, and other conditions of the reinsurance. Since the Order does not provide any analysis or reasons for the ruling, although it may have given some indication during argument, the Order does not indicate whether the Court denied the motion due to the presence of disputed issues of material fact or because of a disagreement with the legal arguments made by the movants. , Case No. 10-33653 CA 04 (Fla. Cir. Ct. Oct. 7, 2013).
The Ninth Circuit affirmed a ruling holding an arbitration agreement to be unconscionable under California contract law. Attempting to narrow the limits of the U.S. Supreme Court’s ruling in AT&T Mobility v. Concepcion, the Ninth Circuit found the agreement unconscionable in a manner not “uniquely applicable to arbitration.” The arbitration agreement at issue was part of an employment contract, and the district court found the arbitrator selection process to be peculiarly unfair, insofar as it essentially left the choice of arbitrator to the employer. The provision employed a process allowing both sides to nominate three choices, and then strike out choices until only one selection remained. It allowed the party against whom arbitration was sought to make the first deletion from the list, with the parties to take turns thereafter. The district court found that this effectively meant that the last arbitrator standing would be one of the three employer-chosen names. It also found other terms in the contract unfairly balanced in the employer’s favor and “shocked the conscience.” The Ninth Circuit affirmed the district court’s finding that the contract was unconscionable under state contract law, in a way that did not unfairly target its arbitration provision, thus avoiding the strictures of Concepcion and the FAA, which presumptively favor arbitration. , No. 11-56673 (9th Cir. Oct. 28, 2013).
In Virginia, defendant’s employment of plaintiff for house cleaning services became messy when plaintiff sued her employer for numerous torts, statutory violations and breach of contract. With foresight, defendant had required plaintiff to sign a one-page Arbitration Agreement requiring resolution of “any and all claims, disputes, or controversies arising out of” plaintiff’s employment exclusively by the National Arbitration Forum (“NAF”) and sought to enforce that Agreement. The NAF was no longer available to administer the arbitration. Plaintiff argued that designation of the NAF as exclusive arbitrator was integral to the Agreement and the NAF’s unavailability rendered the Agreement unenforceable. The lower court agreed, but the matter was ultimately tidied up in defendant’s favor. On appeal, the supreme court found the NAF designation was not integral to the agreement because: (1) the Agreement included a severability provision, (2) the sole object of the Agreement was to require arbitration, (3) the parties were presumed to know the courts are directed by statute to appoint an arbitrator when an arbitration agreement fails to appoint one, and (4) nothing indicated that the parties considered the contingency that the NAF might not be available. , slip op (Va. Sept. 12, 2013).
THIRD CIRCUIT AFFIRMS ORDER FINDING CONFIDENTIALITY OF DELAWARE CHANCERY COURT’S ARBITRATION PROCEEDINGS UNCONSTITUTIONAL
On , we reported on an order finding unconstitutional the confidentiality provision of Delaware’s novel business arbitration procedures, in which a sitting judge of the Court of Chancery presides in court as arbitrator. The federal district court held that since the arbitration process essentially functions like a civil trial, the confidentiality provision violated the qualified right of access to criminal and civil trials protected by the First Amendment. On appeal, the Third Circuit affirmed (with one dissenting judge), but not before conducting the First Amendment “experience and logic test,” which the lower court had failed to do. As to “experience” the court explored the history of both civil trials and arbitrations and concluded that “both the place and process of Delaware’s proceeding have historically been open to the press and general public.” Regarding the “logic” of public access to the arbitration proceedings, the court held that the “benefits of openness weigh strongly in favor of granting access to Delaware’s arbitration proceedings” and in “comparison, the drawbacks of openness” are relatively slight. The court did not give much weight to the Delaware chancellor and judges’ arguments that: (1) privacy is necessary to protect closely held information, (2) privacy is necessary to prevent the “loss of prestige and goodwill” of the disputants, (3) privacy encourages a “less hostile, more conciliatory approach,” and (4) that public access would “effectively end Delaware’s arbitration program.” The court concluded, “the interests of the state and the public in openness must be given weight, not just the interests of rich businesspersons in confidentiality.” , Case No. 12-3859 (3d Cir. Oct. 23, 2013).
The case involved an insurer’s denial of coverage for damage to a fishing vessel. The discovery dispute related to an insurer’s production of its reinsurance contract and reinsurance reporting, but with all information related to loss reserves redacted as confidential. The court compelled the insurer to produce the reserve information, citing cases holding that such information is relevant to whether the insurer acted in bad faith in denying coverage. The court was not persuaded by the insurer’s attempt to distinguish this reinsurance case from typical first party insurance disputes, finding that the plaintiff had shown that “the purported re-insurer in this case, is actually the front-line insurer.” , Case No. 12cv1333 (USDC S.D. Cal. Nov. 1, 2013).
A federal district court in Pennsylvania sided with plaintiffs on motions to dismiss filed by the lender, private insurers, and captive reinsurance company in a dispute over premiums charged for private mortgage insurance. Although plaintiffs’ claims were outside the statute of limitations window, the court concluded that equitable tolling applies to RESPA claims, denying defendants’ motions on that issue and allowing plaintiffs to conduct limited discovery on statute of limitations and equitable tolling issues. The court also denied defendants’ motions on the merits of the RESPA and unjust enrichment claims, finding plaintiffs’ argument that the reinsurance relationships are “shams” to be persuasive. Defendants did secure the dismissal of N.Y. Gen. Bus. Law § 349 claims brought by non-New York plaintiffs, however. , No. 12-1238 (USDC M.D. Pa. Oct. 30, 2013).
COURT AFFIRMS ORDER APPROVING UP-FRONT DEDUCTION OF BROKER FEES IN DISPUTE OVER ALLOCATION OF REINSURANCE PREMIUM
The plaintiff insurance company wanted to underwrite a commercial automobile insurance program, but lacked the ability to provide direct insurance. It obtained the services of a reinsurance broker, which set up a complicated transaction involving a fronting insurer, ceding 100% of risk to a reinsurer, which in turn retroceded a portion of the risk to the plaintiff. The dispute surrounded whether the reinsurer satisfied its obligation of paying commissions to the plaintiff by paying to the broker and fronting company the brokerage amounts owed by plaintiff. The reinsurer prevailed on summary judgment, and the plaintiff appealed, contending that the reinsurer was not authorized to offset its commission obligations with the cost of broker fees and expenses. On appeal, the court affirmed summary judgment and rejected the plaintiff’s argument, finding that each separate agreement underlying the various relationships amongst the program participants were inextricably intertwined such that the reinsurer acted properly in accounting for amounts owed by the plaintiff company to the broker and fronting company. The court further relied on industry custom and the course of dealings between the parties, including monthly bordereaux sent to the plaintiff (without protest) that disclosed all premium, commission, and expense allocations under the program. , Case No. 179 MDA 2013 (Pa. Sup. Ct. Nov. 1, 2013).