Suter v. Munich Reinsurance Co.

223 F.3d 150, 2000 WL 1093308
CourtCourt of Appeals for the Third Circuit
DecidedAugust 7, 2000
DocketNo. 99-5611
StatusPublished
Cited by34 cases

This text of 223 F.3d 150 (Suter v. Munich Reinsurance 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
Suter v. Munich Reinsurance Co., 223 F.3d 150, 2000 WL 1093308 (3d Cir. 2000).

Opinions

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Appellee LaVecchia (hereinafter “the Liquidator”), the Liquidator of Integrity Insurance Co. (hereinafter “Integrity”), commenced this adversary proceeding in the Superior Court of New Jersey alleging that Appellant Munich Reinsurance Co. (hereinafter “Munich Re”) breached certain reinsurance treaties. She sought damages and declaratory relief. Because the treaties include arbitration clauses governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter “the Convention”), Munich Re removed the action to the United States District Court for the District of New Jersey pursuant to 9 U .S.C. § 205.

Munich Re then moved in the District Court for an order compelling arbitration and staying the proceedings pending arbitration. The Liquidator moved to remand to the state court on three grounds: (1) that the “Service of Suit” clause contained in each of the reinsurance treaties waived Munich Re’s right to remove; (2) that the Convention and the Federal Arbitration Act (FAA) are reverse preempted by the New Jersey Liquidation Act under the McCarran Ferguson Act, 15 U.S.C. § 1012; and (3) that Munich Re’s extensive involvement in litigation before the Liquidation Court precluded removal.

The motions were referred to a Magistrate Judge, who issued a Report and Recommendation advising that the Liquidator’s motion to remand be granted on the ground that the service of suit clause operated as a waiver of Munich Re’s removal rights. The Magistrate Judge did not reach the other arguments.

The District Court adopted the Report and Recommendation of the Magistrate Judge as the Opinion of the Court, and remanded the action to the Superior Court of New Jersey without ruling on the motions to compel arbitration and to stay proceedings pending arbitration. Munich Re filed timely notice of appeal. This Court has appellate jurisdiction because an order remanding on the grounds that a forum selection clause in the parties’ contract has waived the defendant’s removal rights is a collateral order that is treated as final for purposes of appeal. See Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1211 (3d Cir.1991). We will reverse.

I.

Munich Re is a reinsurance company organized and existing under the laws of the Federal Republic of Germany. Integrity was a stock property and casualty insurance company organized under the laws of the State 'of New Jersey. During the period from 1978 through 1985, Munich Re entered into certain “quota share” and “excess of loss” reinsurance treaties with Integrity, whereby Munich Re [153]*153agreed to reinsure Integrity’s liability under certain policies of excess and umbrella liability insurance issued by Integrity (hereinafter “the Umbrella Policies”). Each reinsurance treaty contains a service of suit clause that substantially provides:

that in the event of the failure of the Reinsurers hereon to pay any amount claimed to be due hereunder, the Rein-surers hereon, at the request of the Company, will submit to the jurisdiction of any Court of competent jurisdiction within the United States and will comply with all requirements to give such Court jurisdiction and all matters arising hereunder shall be determined in accordance with the law and practice of such Court.

(A.51, 66, 86, 113, 141, 164, 189). Each of the treaties also contains an arbitration clause that substantially provides that:

If any dispute or difference of opinion shall arise with reference to the interpretation of this Agreement or the rights with respect to any transaction involved, the dispute shall be referred to three arbitrators, one to be chosen by the Company, one to be chosen by the Reinsurer, and the third to be chosen by the two arbitrators so chosen within 30 days of their appointment.

(A.62, 67, 87, 114, 142, 164, 190).

In 1986, delinquency proceedings were instituted against Integrity. • In 1987, the Superior Court of New Jersey (hereinafter “the Liquidation Court”) declared Integrity insolvent, placed it in liquidation pursuant to the New Jersey Liquidation Act, N.J. Stat. Ann. § 17:30C-1 et seq., and appointed the New Jersey Commissioner of Insurance and her successors in office as its Liquidator. Pursuant to the Liquidation Court’s Order and the Liquidation Act, the Liquidator was directed to liquidate Integrity’s liabilities, marshal its assets, and wind up its business and affairs. The Liquidation Court’s Order requires the Liquidator to file a Notice of Determination (NOD) recommending allowance or disallowance for each Proof of Claim filed, and provides that absent timely objection, the recommended allowance or disallowance shall constitute a final judgment. The Liquidator asserts that she has issued various NODs that allow claims for indemnification of losses and payment of defense expenses incurred with respect to third-party claims filed by various policyholders under the Umbrella Policies, and that these NODs have become final judgments. She further asserts that numerous claims for indemnification and defense expenses filed by policyholders under the Umbrella Policies remain unresolved.

In June 1996, the Liquidator filed a motion with the Liquidation Court for court approval of her proposed Final Dividend Plan (FDP), which provides that contingent claims against Integrity would be estimated and allowed where appropriate, reinsurance on the claims would come due, and the Liquidator would pay a final dividend and close the Estate in three to five years instead of the ten to twenty years it would otherwise take for all of Integrity’s liabilities to become liquidated. Munich Re was active in opposing the FDP. The Liquidator asserts that among other things, Munich Re contended that the Umbrella Policies do not provide coverage for defense expenses where the underlying coverage is exhausted.

Commencing December 1996, the Liquidator billed Munich Re $6.8 million on allowed claims, of which $2.8 million is on account of disputed defense expenses. The Liquidator asserts that Munich Re has refused to pay not only the $2.8 million dollars in disputed defense expenses, but also the $4 million on undisputed allowed claims, “apparently on the basis that this amount should be set off against prior payments it made on account of Disputed Defense Expenses which, in hindsight, Munich now concludes it should not have made.” (A.250). Therefore, the Liquidator filed this lawsuit against Munich Re in the Liquidation Court seeking a declaratory judgment that the Umbrella Policies include coverage for the disputed defense expenses and declaring that Munich Re’s [154]*154reinsurance obligation extends to disputed defense expenses allowed by the Liquidator under the reinsured Umbrella Policies. She also sought damages for Munich Re’s refusal to pay.

II.

The initial issue for resolution is whether the District Court erred in holding that the service of suit clause operated as a waiver of Munich Re’s right to remove under the Convention Act. This is an issue of first impression for us. We have on three prior occasions, however, considered whether similar service of suit clauses waived other rights: Patten Sec. Corp. v. Diamond Greyhound & Genetics,

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Bluebook (online)
223 F.3d 150, 2000 WL 1093308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suter-v-munich-reinsurance-co-ca3-2000.