Colonial Penn Insurance v. Omaha Indemnity Co.

943 F.2d 327
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 5, 1991
DocketNo. 90-1872
StatusPublished
Cited by9 cases

This text of 943 F.2d 327 (Colonial Penn Insurance v. Omaha Indemnity Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colonial Penn Insurance v. Omaha Indemnity Co., 943 F.2d 327 (3d Cir. 1991).

Opinion

OPINION OF THE COURT

SLOVITER, Chief Judge.

After an arbitration panel issued a final award in favor of one of the parties, a majority of the panel issued a new award “clarifying” the original award and increasing the amount awarded. The district court granted the successful party’s motion to confirm the second award, and denied the other party’s motion to confirm the first award. This appeal presents the question whether the arbitrators exceeded their powers when they issued a second award, and, if so, the circumstances under which an arbitral award may be corrected because of an erroneous assumption of fact.

I.

Background Facts and Procedural History

In October 1984, Colonial Penn Insurance Company entered into a reinsurance agreement, signed by Royal American Managers, Inc. (RAM) on behalf of Omaha Indemnity Company, pursuant to which Omaha (the reinsurer) was to indemnify Colonial Penn (the reinsured) against ninety percent [329]*329of the losses Colonial Penn might experience on a book of short-term auto rental policies. Omaha apparently honored the agreement by accepting Colonial Penn’s premiums and paying the agreed upon share of claims and expenses until September 1986 when it ceased funding the claims and asserted that RAM lacked authority to bind Omaha to the contract.

Colonial Penn filed this diversity action for breach of contract in the United States District Court for the Eastern District of Pennsylvania against Omaha, its parent Mutual of Omaha Insurance Company, and RAM. Omaha and Mutual of Omaha thereafter joined National Risk Underwriters, Inc. (NRU), Colonial Penn’s underwriting manager, as a third-party defendant. Colonial Penn also asserted a claim against NRU for indemnification. In December 1987, the district court dismissed Omaha’s claim against NRU, granted Omaha’s motion to compel binding arbitration of its dispute with Colonial Penn as provided in the reinsurance agreement, and stayed the proceedings as to the parties other than Omaha and Colonial Penn.

A panel of three arbitrators was formed, whereby each party appointed an arbitrator and the two arbitrators together selected an umpire. Colonial Penn claimed that it had incurred losses and expenses of approximately $29 million as a result of Omaha’s repudiation. In defense, Omaha contended, inter alia, that the parties had previously agreed to a rescission of the agreement pursuant to which Omaha had paid to Colonial Penn $9.6 million representing premiums that RAM had collected from Colonial Penn but failed to remit to Omaha. After the parties engaged in extensive discovery and briefing of legal and factual issues, they participated in an eight-day arbitration hearing.

The panel issued a unanimous “Final Award” on January 18, 1990, which provided in pertinent part:

FINAL AWARD

After due consideration of the extensive evidence introduced by the parties in this proceeding and careful examination of the briefs and arguments in support of their respective positions on each of the pertinent issues, the Panel unanimously finds, concludes and ORDERS that:

1. Omaha Indemnity shall pay the sum of $10 million to Colonial Penn without further delay in satisfaction of Omaha Indemnity’s obligations to Colonial Penn under the Reinsurance Agreement between the parties dated October 1, 1984.
2. Omaha Indemnity Company shall further release any and all claims to the reserves (including IBNR)1 currently held by Colonial Penn to pay losses and loss adjustment expenses arising out of the business which was the subject of the Reinsurance Agreement between the parties.
3. Upon payment of the sum of $10 million to Colonial Penn and release of all claims to such reserves, Omaha Ind[em]nity shall be relieved of any further liability for the payment of losses and loss adjustment expenses under the Reinsurance Agreement between the parties and also released from any other claims arising out of or related to the performance or nonperformance of its duties under that Agreement.

App. at 89-90 (emphasis added).

After reading the final award, Colonial Penn’s counsel initiated a conference call to the umpire and Omaha’s counsel. Colonial Penn’s counsel stated that he was puzzled by the award because Colonial Penn was not holding any reserves on this program and that Omaha was not claiming any Colonial Penn reserves. During that conversation, the umpire stated that he thought, based on one of the exhibits presented at the arbitration, that Colonial Penn was holding reserves, including IBNR, of more than $8 million “and that it was the panel’s [330]*330intention that Colonial Penn keep that amount and run off the business.” Affidavit of Frank J. Martin, Jr., Omaha’s counsel, App. at 117. The umpire stated that perhaps the matter should be clarified and, in response to the umpire’s inquiry, counsel for Omaha responded that he thought the Final Award was clear and unambiguous. Omaha’s counsel sent a letter to the arbitrators later that day stating, inter alia,

I understand the Final Order ... to mean that, upon payment of the $10 million referred to in para. 1, Omaha Indemnity will have no further liability to Colonial Penn, and no claim against moneys held by Colonial Penn to fund the $8.9 million in reserves, whether by reason of the $9.6 million in “unused premium” previously paid by Omaha Indemnity to Colonial Penn, or otherwise.

App. at 120. Colonial Penn’s counsel responded by letter requesting “an amended award which reflects the panel’s understanding as to the amount it awarded Colonial Penn.” App. at 123.

On January 29, 1990, Colonial Penn’s arbitrator and the umpire, constituting a majority of the panel, issued a second (and substitute) order “[i]n response to a request from the parties for clarification ... and after review of the submissions of the parties in support of their joint request for clarification.” App. at 64. The second order deleted the reference to any release by Omaha of a claim to Colonial Penn’s reserves. Instead, it provided that in addition to the $10 million previously awarded to Colonial Penn, Omaha would also be required to pay to Colonial Penn “the sum of $8,988,783 which represents Omaha Indemnity’s share of the reserves (including IBNR) which will be necessary to pay losses and loss adjustment expenses arising out of the business which was the subject of the Reinsurance Agreement between the parties.”2

In a letter accompanying this second award, the umpire explained that “at least a majority of the Panel was under the mistaken assumption that Colonial Penn was holding Omaha’s 90% share of the reserves on the book of business in question and, therefore, that portion of the Award directing Omaha ... to release any and all claims to those reserves was designed to make that sum ($8,988,783) available to Colonial Penn for the purpose of paying claims in the run-off of the business.” App. at 138. The third arbitrator dissented from this order.

On February 1, 1990, as directed in the first award, Omaha forwarded $10 million to Colonial Penn and stated in the covering letter that Omaha “hereby releases any and all claims to the reserves (including IBNR) currently held by Colonial Penn to pay losses and loss adjustment expenses arising out of the business which was the subject of the reinsurance agreement.” App. at 141.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
943 F.2d 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colonial-penn-insurance-v-omaha-indemnity-co-ca3-1991.