Selcke v. New England Insurance

995 F.2d 688
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 3, 1993
DocketNo. 92-3768
StatusPublished
Cited by1 cases

This text of 995 F.2d 688 (Selcke v. New England Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Selcke v. New England Insurance, 995 F.2d 688 (7th Cir. 1993).

Opinion

POSNER, Circuit Judge.

The New England Reinsurance Company (NERCO) appeals under 9 U.S.C. § 16(a)(1)(A) from the denial of its motion to stay, pending arbitration, a diversity suit for breach of contract brought against it by the rehabilitator of an insolvent insurance company named Centaur. Centaur claims that NERCO owes it more than $4 million under four reinsurance contracts. NERCO admits owing most of this amount to Centaur but claims that Centaur owes it and its affiliates [689]*689more than $33 million under other reinsurance contracts and that NERCO is entitled to set off what it owes Centaur against what Centaur owes it. The $33 million claim is greatly exaggerated, because most of the money in question is owed to affiliates of NERCO that are not parties to this suit. However, the amount is not material to the appeal.

Each of the four contracts on which Centaur’s suit is based contains an arbitration clause which provides (with immaterial variations in wording and punctuation) that “should an irreconcilable difference arise as to the interpretation of this Agreement, it is hereby mutually agreed that, as a condition precedent to any right of action hereunder, such difference shall be submitted to arbitration.” The district judge refused to order arbitration, reasoning that NERCO’s claimed right to setoff is statutory and that a dispute over that right is therefore not a dispute over the interpretation of the contract.

The law of Illinois, which the parties agree governs the substantive issues in this case, creates a right to set off mutual credits and debts between an insolvent insurance company and any other person. Ill. Rev.Stat. ch. 73, ¶ 818. It is on that law that NERCO bases its defense. But it is also the law of Illinois that “statutes in existence at the time a contract is executed” are deemed, in the absence of contractual language to the contrary, “part of the contract as though they were expressly incorporated therein.” McMahon v. Chicago Mercantile Exchange, 221 Ill.App.3d 935, 164 Ill.Dec. 369, 375, 582 N.E.2d 1313, 1319 (1991). To same effect see S & D Service, Inc. v. 915-925 W. Schubert Condominium Ass’n, 132 Ill.App.3d 1019, 88 Ill.Dec. 163, 168, 478 N.E.2d 478, 483 (1985); Merrill Tenant Council v. U.S. Department of Housing & Urban Development, 638 F.2d 1086, 1089-90, 1092 (7th Cir. 1981). (Washburn v. Societe Commercials de Reassurance, 831 F.2d 149, 152 (7th Cir. 1987), could be thought to look the other way, but the issue was not discussed.) In other words, statutes are a source of impUed contractual terms, McMahon v. Chicago Mercantile Exchange, supra, 164 Ill.Dec. at 375, 582 N.E.2d at 1319 — the Uniform Commercial Code being the most common such source — just like common law doctrines, Nevin v. Pullman Palace Car Co., 106 Ill. 222, 233 (1883), such as the duty of good faith, which in Illinois is read into all contracts. P.A. Bergner & Co. v. Lloyds Jewelers, Inc., 112 Ill.2d 196, 97 Ill.Dec. 415, 418, 492 N.E.2d 1288, 1291 (1986); Scherer v. Rockwell Int’l Corp., 975 F.2d 356, 360 (7th Cir. 1992). Illinois statute law thus makes the right of setoff an implied term of any contract with an insolvent insurance company.

A suit to enforce an implied term is a suit that arises under the contract; and likewise a defense, based on an implied term, to a suit. The fact that the source of the implied term is a statute rather than an inference from what the parties said or from the circumstances of the contract makes no difference. All the statute at issue in this case doés is create a right of setoff. The contours of that right as applied to specific reinsurance contracts alleged to create offsetting credits or debts-depend on practical, contextual, fact-laden judgments that nestle as cozily within the competence of arbitrators experienced in the arcane practices and usages of the reinsurance industry as any other interpretive issue likely to arise in a reinsurance contract.

It is true that the arbitration clause in the contracts involved in this case is worded narrowly. It does not provide for arbitration of all disputes arising under the contract, just those that involve disagreements over interpretation. Most arbitration clauses are broader, often extending to all disputes growing out of the contract, as in Local 70S, International Brotherhood of Teamsters v. Kennicott Bros. Co., 725 F.2d 1088, 1089 (7th Cir.1984). Despite the favorable judicial attitude toward arbitration — a selfish attitude, in part, because the courts are heavily burdened these days and arbitration is an alternative to adjudication — it is for the parties to decide which if any of their disputes shall be subject to arbitration, and their decision should be honored. But we think a dispute over an implied term is within the class of interpretive disagreements, even if the source of the term is statutory. In fact the source is irrelevant. A contract is the sum of [690]*690its express and implied terms. It is not easy to see why contracting parties would want arbitration if the dispute was over an express term but adjudication if it was over an implied one — and what of the case where both sorts of term are in dispute? The clause in our case is worded quite similarly to other arbitration clauses that are common in the insurance and reinsurance industries, Schacht v. Beacon Ins. Co., 742 F.2d 386, 391 (7th Cir.1984); Bennett v. Liberty National Fire Ins. Co., 968 F.2d 969, 971 (9th Cir. 1992); Robert F. Salm, “Reinsurance Contract Wording,” in Reinsurance 79, 135 (Robert W. Strain ed. 1980), yet are interpreted broadly. Id. at 79. It is true that many of these arbitration clauses cover disputes over performance as well as over interpretation and that this clause does not, but we do not think that this should make a difference when the dispute is over interpretation. We can imagine a ease in which both parties agree that for example some form of notice is a condition precedent, to performance, and the only dispute is over whether the notice was given. That dispute would be arbitrable if the arbitration clause included performance disputes, not if it did not. Ours is not such a ease.

Centaur argues that NERCO waived the argument that the setoff statute creates an implied contractual term by failing to make it to the district judge. NERCO had moved for arbitration on the ground that its dispute over setoff was a disagreement over the interpretation of the reinsurance contracts. Centaur replied that NERCO’s right of setoff was statutory, not contractual.

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Related

Selcke v. New England Insurance Company
995 F.2d 688 (Seventh Circuit, 1993)

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Bluebook (online)
995 F.2d 688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/selcke-v-new-england-insurance-ca7-1993.