NAOMI REICE BUCHWALD, District Judge.
Petitioners Harper Insurance Limited, River Thames Insurance Company Limited, and Guildhall Insurance Company Limited are London market companies ("petitioners" or "LMCs"). They bring this action seeking to vacate an arbitration award granted in favor of Century Indemnity Company ("Century"). For the following reasons, LMCs' petition is denied, and Century's cross-petition to confirm the award is granted.
We briefly summarize only those facts essential to our conclusion. Petitioners are a subset of a larger group of London Market Reinsurers ("LMRs") which were parties to a reinsurance
By the early 2000s, an "unanticipated flood" of asbestos bodily-injury claims "threatened to bankrupt . . . insurers and reinsurers." Mem. of Law in Supp. of Pet. at 4 n. 4; Ex. 9 to O'Donnell Cert. at 11. In response, LMRs instituted a program in which Century would have to meet certain Reinsurance Documentation Requirements ("RDRs") in order to receive indemnification. Century believed that these unilaterally-imposed requirements were extra-contractual and a departure from the parties' long course of dealing. Mem. of Law in Opp'n at 5. Eventually, due to a "considerable bottleneck in LMR's payments for asbestos claims" and a "large number of policyholder specific arbitrations," Century initiated arbitration against the LMR in order to obtain a "global resolution of this dispute." Mem. of Law. in Opp'n to Pet. at 5.
Eight separate arbitration panels were formed.
The Hunter Panel divided the arbitration proceeding into three phases. Phase 1A, the outcome of which is at issue here, addressed Century's claims for declaratory relief and allegations concerning a breach of contract arising out of the RDRs. O'Donnell Cert. ¶ 14. The parties engaged in discovery and submitted memoranda of law on these issues, and an evidentiary
On December 10, 2006, the Powers Panel issued an Interim Order, over the protestations of a dissent,
Ex. 13 to O'Donnell Cert. ¶ 5.
In a footnote, the Powers Panel addressed their choice of 106 days:
Id. n. 1.
The Powers Panel noted that nothing in its protocol precluded LMRs from raising "any objection prior or subsequent to payment of disputed amounts relating to any particular account, loss notice or billing prior or subsequent to billing." Ex. 13 to O'Donnell Cert. ¶ 7. In fact, the Panel retained jurisdiction in order to resolve any such disputes going forward. The Panel offered that, in general, it would "endeavor to decide any dispute referred to it pursuant [to the prepayment protocol] within a period of three months" and that the "prevailing party is likely to be awarded interest at a commercial rate on whatever sum is payable and in whichever direction." Id. at 9.
The Panel was never asked to resolve a dispute involving the prepayment provision. Indeed, the provision itself "has never been triggered." O'Donnell Cert. ¶ 29. On May 10, 2010, approximately three-and-one-half years following the issuance of the Interim Order, one of the arbitrators emailed counsel for LMR and Century and, noting that "none of the parties have needed guidance from the Panel in a considerable time," asked whether "it is necessary or appropriate for the Panel to continue further jurisdiction in this matter." Ex. 15 to O'Donnell Cert. The Panel requested the parties' views by June 1, 2010.
On June 1, 2010, LMCs submitted a letter in which they agreed that jurisdiction should be terminated, but requested that the Panel eliminate the provision requiring prepayment of 75% of disputed claims. LMCs argued that "[c]onverting such an interim provision into a permanent one, when it is no longer necessary to
The arbitrators reviewed the matter, and on July 15, 2010, issued a Final Order denying the relief requested by the LMCs. The Final Order terminated jurisdiction and incorporated the Interim Order, modified only to reflect that since the Panel no longer had jurisdiction, either party could initiate arbitration within ten days of a failure to agree on payments. On October 14, 2010, LMCs brought this petition seeking to vacate the Panel's Final Order.
The parties dispute whether New York's Civil Practice Law ("CPLR") or the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), should apply to this petition. This question has potentially significant consequences, because if the CPLR applies, the petition is likely time-barred.
It is well-settled that arbitration awards are "subject to very limited review in order to avoid undermining the twin goals of arbitration, namely, settling disputes efficiently and avoiding long and expensive litigation." Willemijn Houdstermaatschappij, BV v. Standard Microsystems Corp., 103 F.3d 9, 12 (2d Cir. 1997) (internal quotes omitted); Barbier v. Shearson Lehman Hutton Inc., 948 F.2d 117, 120 (2d Cir.1991). Arbitration awards are not reviewed for errors made in law or fact. See Willemijn Houdstermaatschappij, 103 F.3d at 12. Rather, an award may only be vacated on extremely limited grounds. In this case, petitioners seek to vacate the award pursuant to 9 U.S.C. § 10(a)(4),
The Second Circuit has "consistently accorded the narrowest of readings to the FAA's authorization to vacate awards pursuant to § 10(a)(4)." Banco de Seguros del Estado v. Mut. Marine Office, Inc., 344 F.3d 255, 262 (2d Cir.2003) (internal quotation omitted). The inquiry "focuses on whether the arbitrators had the power based on the parties' submissions or the arbitration agreement, to reach a certain issue, not whether the arbitrators correctly decided that issue." Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 220 (2d Cir.2002) (citation omitted). A reviewing court merely determines "`whether the arbitrator's award draws its essence' from the agreement to arbitrate, `since the arbitrator is not free merely to dispense his own brand of industrial justice.'" ReliaStar Life Ins. Co. v. EMC Nat'l Life Co., 564 F.3d 81, 85 (2d Cir.2009) (alterations in original) (quoting 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 527 (2d Cir.2005)).
"Where an arbitration clause is broad, as here, arbitrators have the discretion to order remedies they determine appropriate, so long as they do not exceed the power granted to them by the contract itself." Banco de Seguros, 344 F.3d at 262. Vacatur of an award is "`appropriate only if the arbitral award contradicts an express and unambiguous term of the contract [between the parties] or if the award so far departs from the terms of the agreement that it is not even arguably derived from the contract.'" ReliaStar Life Ins. Co., 564 F.3d at 90 (Pooler, J., dissenting) (quoting Westerbeke Corp., 304 F.3d at 222). Arbitration awards will be upheld so long as the arbitrator "offers a barely colorable justification for the outcome reached." Banco de Seguros, 344 F.3d at 260 (internal quotation omitted).
LMCs raise two arguments in support of their petition. First, they contend that the Panel exceeded its powers by materially altering the Agreement to include a prepayment provision. Since an "arbitrator cannot re-write a new agreement for the parties," Collins & Aikman Floor Coverings Corp. v. Froehlich, 736 F.Supp. 480, 484 (S.D.N.Y.1990), petitioners argue that the award should be vacated. Second, LMCs contend that the Panel ordered relief that neither party requested, and therefore it did not rule on an issue "the parties agreed to submit . . . for arbitration." Mem. of Law in Supp. of Pet. at 19 (quoting Banco de Seguros, 344 F.3d at 262). We address petitioners' arguments in reverse order.
Petitioners acknowledge that Century "asked the Panel to decide `how' and `when' LMCs are required to indemnify Century for losses under Treaty 101." Reply Mem. of Law in Supp. of Pet. at 6. However, they complain that Century only sought an order requiring LMC to "pay or deny" bills within 75 days of receipt. According
For purposes of this decision, we will accept petitioners' claim that we should disregard the fact that the Panel was clearly presented with the issue of whether to finalize its Interim Order,
LMCs' position essentially asks us to create such a rule and find that the arbitrators necessarily exceeded the scope of their authority by fashioning relief not specifically requested, even though the relief was ordered to remedy an issue they concede was submitted to the Panel. Such a holding is fundamentally at odds with the role of the courts in reviewing arbitration awards. As detailed above, a reviewing court simply asks whether the award "draws its essence from the agreement to arbitrate" or has a "barely colorable justification." Banco de Seguros, 344 F.3d at 260 (internal quotation omitted).
Lastly, petitioners' complaint that they were not able to present any evidence or witnesses relating to the question of prepayments is belied by the record before the Court. The parties clearly detailed their long course of dealing to the Panel. This included presenting evidence of the parties' prior practice of Outstanding Cash Advances (OCAs), in which LMRs would make prepayments into a trust from which Century would then withdraw the amount to which it was entitled. See Ex. 10 to O'Donnell Cert. at 14-16. In their memoranda to this Court, LMCs contend that the OCAs were entirely voluntary and non-contractual. LMCs describe the evidence pertaining to OCAs that was presented to the Panel, and argue that it "establish[ed] the converse of the point Century seeks to make: [it proved] that LMCs had no intent or contractual obligation, express or implied, to pay Century for losses LMCs deny." Reply Mem. of Law in Supp. of Pet. at 8-9. This argument discredits their claim that they were prejudiced by not having the opportunity to put on evidence or witnesses relating to prepayments or the parties' course of dealing. Clearly, the Panel was presented with evidence that the parties had successfully used a prepayment method in the past.
We further conclude that the arbitrators did not exceed the scope of their authority by fashioning the relief at issue. While we are sympathetic to LMCs' concerns that the Final Order includes obligations not explicitly bargained for by the parties, we do not believe that the arbitrators materially rewrote the contract or acted outside the scope of their authority. Once again, we note that this contract had an honorable engagement clause, which specifically directed the arbitrators not to interpret the contract literally, but to effect the "general purpose . . . in a reasonable manner." As the Second Circuit has noted, "[c]ourts have read [honorable engagement] clauses generously, consistently finding that arbitrators have wide discretion to order remedies they deem appropriate." Banco de Seguros del Estado v. Mut. Marine Office, Inc., 344 F.3d 255, 261 (2d Cir.2003). Furthermore, it is plainly obvious that the contract, although it did not include a Reports and Remittances clause, expected a prompt flow of funds between the LMRs and Century to cover claims in which the Agreement was "involved." The Panel ultimately concluded that its protocol best effectuated the parties' purpose. We cannot conclude that it did not have, at a minimum, a barely colorable justification for its decision.
In reviewing the award, the court first cited the passage from the Second Circuit referenced above, which noted that "[c]ourts have read [honorable engagement] clauses generously, consistently finding that arbitrators have wide discretion to order remedies they deem appropriate." Id. at 636 (alterations in original) (quoting Banco de Seguros, 344 F.3d at 261). Nevertheless, the court found that even "broad discretion has limits" and that no court "has held that such a clause gives arbitrators authority to re-write the contract they are charged with interpreting." PMA Capital, 659 F.Supp.2d at 636. The court then determined that the arbitrators "evidently found the Deficit Carry Forward Provision to be more trouble than it was worth and simply eliminated it from the 2003 Agreement." Id. However, in an "apparent effort to `compensate' Platinum for this loss, the Arbitrators also allowed Platinum to `carry forward' one last deficit" of $6,000,000, even though both parties agreed that the contractual preconditions for such payment had not yet been met. Id. In the court's view, these actions went well beyond the discretion permitted by the honorable engagement clause. Since the "`contract itself requires the enforcement of the Deficit Carry Forward Provision, not its elimination,'" the arbitrators clearly "exceeded their authority under the Honorable Engagement Clause" by ordering an illegitimate payment of $6,000,000 pursuant to such provision before eliminating it entirely. Id. The Third Circuit agreed. PMA Capital v. Platinum Underwriters
The case before us is distinguishable from PMA Capital. First, the Panel's prepayment mechanism does not violate any explicit provision of the contract itself. LMCs suggest that the prepayment provision requires them to make payments for claims not covered by their underlying policy, and therefore materially alters the terms of the parties' contract. This is not accurate. The protocol simply requires that the LMCs will "front" 75% of the money while disputed payments are resolved. If it turns out that the policy is not "involved," LMCs will recoup their money with interest.
Furthermore, as noted above, the prepayment protocol is a legitimate interpretation of the contract's implied expectation that claims would be paid promptly. Rather than ordering relief that explicitly violates the contract, the Panel's protocol effectuates the contract's purpose in a reasonable manner. Even if this Court disagreed with the Panel's determination, we have no authority to override their considered judgment.
Lastly, unlike PMA Capital, the Powers Panel clearly explained their rationale and justification for the award, which it believes "effectuates the general purpose of the agreement of the parties." Ex. 13 to O'Donnell Cert. n. 1.
We close by noting a few issues with petitioners' various arguments to this Court, both in their written submissions and at oral argument. First, petitioners essentially assert that, once the arbitrators determined that they were violating the Agreement by imposing the RDRs, it was inappropriate for the Panel to issue any remedy beyond what Century asked for or simply a return to the status quo ante. As we stated at oral argument, the "notion that the reinsurers could themselves change the nature of the contract by requiring [the RDRs] and then think, when they are called to task for that, that the answer of the arbitrators is limited to either exactly the thought that Century had or sort of a status quo ante is . . . wrong." Tr. of Oral Argument at 4. "[T]o think you can [impose your own new terms] and not suffer consequences is . . . legally naive." Id. Having improperly imposed their own terms into the contract, LMCs cannot reasonably complain that the arbitrators, with the mandate of an honorable engagement clause, constructed a remedy in an effort to even the balance of power and ensure that the contract will be performed properly going forward.
Furthermore, the protocol issued by the arbitrators provided two significant protections for LMCs. First, it offered that the arbitrators will "endeavor to decide any dispute referred to it pursuant [to the prepayment protocol] within three months." Ex. 13 to O'Donnell Cert. ¶ 7. Second, it stated that the "prevailing party is likely to be awarded interest at a commercial rate on whatever sum is payable and in whichever direction." Id. LMCs' attempt to portray the protocol as a great injustice which will allow Century to abuse the parties' relationship and use them as an "ATM" is contrary to logic. In reality, it is hard to imagine what incentive Century could have to submit faulty claims only to owe interest to the LMCs on any unnecessarily advanced amount.
At oral argument, petitioners claimed that these protections would not necessarily be enforced by future arbitration panels, given that the panel which provided them no longer exists, and that arbitrators typically do not have to follow previous orders as binding. There are a couple of responses to this concern. First, even if a future panel is not obligated by law or contract to
Second, as we noted at oral argument, if petitioners were truly concerned about whether a future panel would enforce these protections, and this is not simply an argument crafted to serve their purposes in this litigation, then they could have asked the Powers Panel to retain jurisdiction. LMCs could have evaluated their options and determined that rather than seeking to terminate the Panel's jurisdiction and eliminate the prepayment provision, they should accept the prepayment provisions coupled with the protections embodied in the Powers Panel's award. Having made the former choice and asked the Panel to terminate jurisdiction, they cannot complain about the fact that the Powers Panel no longer exists and that its protections might not be honored by a future panel.
Lastly, petitioners raised a concern at oral argument that since this case is a matter of public record, our decision will be widely read throughout the industry and will "guide both arbitrators and practitioners regarding the scope of the jurisdiction [a] panel has." Tr. of Oral Argument at 16. Petitioners' implication is that our ruling endorses a dangerous expansion of power for arbitral panels, and arbitrators and companies throughout the industry will be aware of the Powers Panel's protocol and its approval by a federal court. Once again, we remind petitioners that it was their choice to pursue this matter in federal court. Just as they could have chosen to accept the prepayment provision and ask the Powers Panel to retain jurisdiction in order to ensure the protections of interest and a speedy resolution, they similarly could have chosen to accept the Final Order of the Powers Panel rather than bring this case in federal court, where it would become a matter of public record.
Since we deny the petition to vacate. Century's cross-petition to confirm the arbitration award is granted, regardless of what substantive law applies to this petition. See N.Y. C.P.L.R. § 7511(e)
For the aforementioned reasons, the petition to vacate is denied. Respondent's cross-petition to confirm is granted. The Clerk of the Court is hereby directed to close this case forthwith.
Petitioners argue that even under the CPLR, the petition is timely for either of two reasons. First, the statute of limitations only begins to run upon "delivery" of a final award. According to petitioners, the Final Order was never properly "affirmed" or "delivered" as required by the CPLR, and therefore the statute of limitations has not run. Second, even if the petition was initially late, petitioners claim that they are now timely petitioning to vacate in response to Century's counter-petition, as permitted under New York Law. Century challenges both of these contentions. See Reply Mem. of Law in Supp. of Cross-Pet. at 3-6. As we conclude that petitioners have not met their substantive burden for demonstrating that the arbitration award should be vacated in any event, we do not address these arguments.
In this case, it is the arbitration clause itself which provides that New York law should apply. Presumably, this is the "critical language concerning enforcement" that was lacking in CRC Inc. and Penrod. Petitioners ignore the obvious distinction between those cases and the one presently before this Court. Furthermore, they provide no explanation as to the import of the arbitration clause's provision requiring the application of New York law if it does not concern petitions such as this.
