Yasuda Fire & Marine Insurance Co. of Europe, Ltd. v. Continental Casualty Co.

37 F.3d 345, 1994 WL 547534
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 7, 1994
DocketNos. 94-1197, 94-1986
StatusPublished
Cited by2 cases

This text of 37 F.3d 345 (Yasuda Fire & Marine Insurance Co. of Europe, Ltd. v. Continental Casualty Co.) 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
Yasuda Fire & Marine Insurance Co. of Europe, Ltd. v. Continental Casualty Co., 37 F.3d 345, 1994 WL 547534 (7th Cir. 1994).

Opinion

KANNE, Circuit Judge.

Yasuda Fire & Marine Insurance Company of Europe, Limited (“Yasuda”) brought this case to vacate an interim arbitration award in favor of Continental Casualty Company, a CNA Group Company (“CNA”). Ya-suda argued to the district court that the arbitration panel charged with resolving Ya-suda’s dispute with CNA did not have authority to order Yasuda to post an interim letter of credit, that the letter of credit was excessive, and that the arbitration panel did not give Yasuda a fair hearing. The district court sua sponte denied Yasuda’s Petition to Vacate Arbitration Awards (“Petition to Vacate”). In its memorandum opinion and order, the district court ruled that the arbitration panel had the power to order Yasuda to post an interim letter of credit in the amount of $2,549,660 and that the panel had afforded Yasuda a fair hearing. Yasuda Fire & Marine Ins. Co. v. Continental Casualty Co., 840 F.Supp. 578 (N.D.Ill.1993). Yasuda appeals, challenging the district court’s holdings with regard to three issues; (1) Whether Yasuda’s reinsurance agreement with CNA provided the arbitrators with the power to order Yasuda to post a Letter of Credit as interim security pending arbitration; (2) whether the reinsurance agreement permitted the amount of security which the arbitrators ordered; and (3) whether the arbitrators afforded Yasuda due process in determining the proper amount of the security.

In addition to the issues Yasuda raises, this Court considers whether an award of interim security pending arbitration constitutes an “award” within the meaning of 9 U.S.C. § 10(a)(4) and whether a district court’s refusal to vacate an interim security award is a final decision appealable under 9 U.S.C. § 16(a)(3). Section 10(a)(4) confers jurisdiction on the district court to vacate arbitration awards in limited circumstances. If interim security does not constitute an award within this statute, the district court had no jurisdiction to hear this case.1 Section 16(a)(3) confers jurisdiction upon this court to hear appeals from final decisions of the district court relating to arbitration con[347]*347ducted under the Federal Arbitration Act. If the district court’s disposition of Yasuda’s Petition to Vacate does not constitute a final decision, we do not have jurisdiction to hear this ease.

Background

Yasuda and CNA entered into four reinsurance agreements in the early 1980’s. Ya-suda is the reinsurer, CNA the reinsured. These agreements contain nearly identical provisions requiring the parties to submit disputes arising under them to a three-person arbitration panel.2 They also contain provisions requiring Yasuda to post letters of credit upon CNA’s request (e.g., First Excess of Loss Reinsurance Agreement, Article 15, Appendix to Brief of Appellants, at A40).3

On April 3, 1992, CNA served a demand for arbitration on Yasuda to resolve CNA’s contention that Yasuda had failed to pay CNA its share of losses arising under policies properly ceded to the reinsurance agreements. On June 2, 1992, Yasuda served a cross-demand for arbitration on CNA. On November 30, 1993, the parties met for a preliminary hearing with the arbitration panel. At this hearing the arbitration panel considered CNA’s claim for preliminary security in the amount of $2,549,660 against a possible future arbitration award. The arbitration panel awarded CNA’s request for preliminary relief by ordering Yasuda to post an interim letter of credit in the amount of $2,549,660. Yasuda now appeals this order of the arbitration panel.

Analysis

I. Jurisdictional Issues

Before proceeding to the issues which Yasuda raises, we find it necessary to resolve two jurisdictional problems. The court has a duty to resolve apparent jurisdictional questions even where the parties do not raise them. Fed.R.Civ.P. 12(h)(3); see United Steelworkers v. Libby, McNeil & Libby, 895 F.2d 421 (7th Cir.1990) (stating that “Every federal appellate court has a special obligation to satisfy itself of the jurisdiction of the lower federal courts in a case under review.” (citations omitted)).

a. “Award” Under 9 U.S.C. § 10

First, we must consider whether an interim order of security (such as a letter of credit) constitutes an “award” subject to 9 U.S.C. § 10, which provides:

(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
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(4) Where the arbitrators exceeded their powers;

9 U.S.C. § 10(a)(4). Yasuda claims that the arbitration panel exceeded its powers when it ordered Yasuda to post an interim letter of credit. If the panel’s order does not constitute a statutory award, Yasuda has failed to present a claim which the federal courts can adjudicate.

Other circuits have recognized that interim relief pending final arbitration can be subject to district court confirmation.4 For example, the Sixth Circuit held that an interim arbitration award that required the defendant-city to continue performance. of a coal pur[348]*348chase contract until the arbitration panel issued its final award was subject to confirmation. Island Creek Coal Sales Co. v. City of Gainesville, Florida, 729 F.2d 1046, 1049 (6th Cir.1984) (reasoning that the interim award disposed of a “separate, discrete, independent, severable issue”: whether the city-had to perform the contract during the pen-dency of the arbitration proceedings), cert. denied, 474 U.S. 948, 106 S.Ct. 346, 88 L.Ed.2d 293 (1985). The Second Circuit, though not addressing the issue, noted the district court’s rejection of the argument that an arbitration panel’s resolution of an interim dispute over a letter of credit was not ripe for confirmation. Sperry Int’l Trade v. Israel, 689 F.2d 301, 304 n. 3 (2d Cir.1982) (relating district court’s conclusion that an interim award “was a final decision as to the severa-ble issues regarding the letter of credit” in light of award’s own stipulation that either party could seek confirmation).

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37 F.3d 345, 1994 WL 547534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yasuda-fire-marine-insurance-co-of-europe-ltd-v-continental-casualty-ca7-1994.