Davister Corp. v. United Republic Life Insurance

152 F.3d 1277, 1998 U.S. App. LEXIS 21170, 1998 WL 546135
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 28, 1998
Docket96-4063
StatusPublished
Cited by36 cases

This text of 152 F.3d 1277 (Davister Corp. v. United Republic Life Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davister Corp. v. United Republic Life Insurance, 152 F.3d 1277, 1998 U.S. App. LEXIS 21170, 1998 WL 546135 (10th Cir. 1998).

Opinions

JOHN C. PORFILIO, Circuit Judge.

This case considers whether the district court erred by abstaining from enforcing arbitration of a dispute between Davister Corporation and the Liquidator of. United Republic Life Insurance Company (United), an insurance company domiciled in Utah and currently under liquidation in insolvency proceedings in Utah state court. We believe this question must be resolved under the McCarran-Ferguson Act, not under other doctrines of abstention. So focused, we hold the district court correctly refused to compel arbitration. We therefore affirm1 its judgment.

The facts of this matter are relatively simple. Prior to insolvency, United had entered into a transaction with Davister in which it agreed to transfer some of its stock to Davis-ter in exchange for 100% of the stock of R.G. Acquisition Corporation (RGA). As part of that agreement, United was to obtain certain real property interests in Waco, Texas, that were the principal assets of RGA. Subsequently, the Commissioner of the Utah Insurance Department notified United this and other similar transactions were improper and must cease. Moreover, the Commissioner advised United the transaction involving the stock of RGA “must be reversed” because United had not obtained required authorization from the commission to exchange its stock for the stock of RGA.

Before the reversal was accomplished, however, the Commissioner filed an action in Utah state court to seize control of the company. He also filed an action in Texas state court to gain control of the Waco real property interests. Davister intervened in the Texas action seeking rescission of its transaction with United, claiming the Utah Commissioner’s order to reverse caused a failure of consideration in its agreement with United. Davister also sought a judgment establishing its right to the Texas property interests.

Meanwhile, in the Utah state court action, the Commissioner obtained an order liquidating United and appointing him the Liquidator. Contemporaneously, the state court issued an order staying all claims against United. See Utah Code Ann. § 31A-27-317 (“The filing of a petition for liquidation of a domestic insurer or of an alien insurer domiciled in this state stays all actions and all proceedings against the insurer-”). That stay was honored by the Texas court which also stayed all of Davister’s claims pending in that forum, although the court permitted the continuation of the balance of the Texas action.

Davister then filed this case against United and the Commissioner (Defendants) in the United States District Court for the District of Utah to compel arbitration of the dispute over the Texas real property interests in accordance with the agreements between Davister and United. In addition, Davister sought a stay of the entire Texas action and the Utah liquidation. After a hearing on the merits, the federal district court abstained from compelling arbitration and refused to grant the stay requested by Davister. Dav-ister then brought this appeal.

On appeal, Davister argues clear national policy and the Federal Arbitration Act mandate arbitration in place of state litigation when the parties have contracted to submit disputes to arbitration, citing Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984), and Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Davister contends once a federal court determines a dispute exists between the parties [1279]*1279which they have agreed to arbitrate, it must stay all other proceedings and compel arbitration. Houlihan v. Offerman & Co., 31 F.3d 692, 695 (8th Cir.1994). Defendants respond that abstention was proper on grounds of comity, but if not on that basis, certainly under the McCarran-Ferguson Act. Defendants rely upon 15 U.S.C. § 1012 which states: “No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance,” contending it trumps the federal policy favoring arbitration. Defendants also urge their position is supported by United States v. Fabe, 508 U.S. 491, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993).

In Fabe, the Court was called upon to determine whether in an Ohio statutory procedure for the liquidation of an insolvent insurance company the United States was entitled to assert a priority claim granted it under a federal statute. “In order to resolve this case, we must decide whether a state statute establishing the priority of creditors’ claims in a proceeding to liquidate an insolvent insurance company is a law enacted ‘for the purpose of regulating the business of insurance,’ within the meaning of § 2(b) of the McCarran-Ferguson Act, 15 U.S.C. § 1012(b).” Fabe, 508 U.S. at 493, 113 S.Ct. 2202.1

The United States maintained the Ohio liquidation act could not have been enacted for the purpose of regulating the business' of insurance because it merely determined the order in which claims of creditors would be paid. It also contended the statute did not deal with the insurer-insured relationship because it pertained only to resolution of conflicts between policyholders and other creditors of the insolvent insurance company.

The government grounded its argument on two cases, Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982), and S.E.C. v. National Sec., Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969). Pireno held there are three factors to be considered in determining what constitutes the business of insurance: (1) does the practice have the effect of transferring or spreading a policyholder’s risk; (2) is the practice integral to the relationship of the insurer and the insured; (3) is the practice limited to entities within the insurance industry? Pireno, 458 U.S. at 129, 102 S.Ct. 3002. National Sec. held: “Statutes aimed at protecting or regulating [the] relationship [between insured and insurer], directly or indirectly are laws regulating the ‘business of insurance.’ ” National Sec., 393 U.S. at 460, 89 S.Ct. 564.

The Court was unconvinced. Considering Pireno together with Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979), both of which held McCarranFerguson inapplicable to “ancillary activities” within the insurance industry, see Fabe, 508 U.S. at 503, 113 S.Ct.

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Bluebook (online)
152 F.3d 1277, 1998 U.S. App. LEXIS 21170, 1998 WL 546135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davister-corp-v-united-republic-life-insurance-ca10-1998.