ACE PROPERTY & CASUALTY INSURANCE COMPANY v. AXA RE Petition to Confirm Arbitration

8/3/2019 ACE PROPERTY & CASUALTY INSURANCE COMPANY v. AXA RE Petition to Confirm Arbitration

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORKIn the Matter of the Arbitration BetweenACE PROPERTY & CASUALTY INSURANCECOMPANY (f/lc/a CIGNA PROPERTY &CASUALTY INSURANCE COMPANY) assuccessor in interest and assignee of IMPERIALCASUALTY AND INDEMNITY COMPANY, andILLINOIS UNION INSURANCE COMPANY(f/k/a GATX INSURANCE COMPANY),

Petitioners.and

AXA RE, as successor to ANCIENNE MU TUE LLEand L'ABEILLE IGARD,Respondent.

Civil Action No .7 11*NOTICE OF PETITION TOCONFIRM ARBITRATIONAWARDS

TO : AXA RE39 rue du Colisee75008 Pa ris, FranceSIRS:

P L E A S E T A K E NOTICE that upon the annexed Petition To Confirm ArbitrationAw ards, the accompanying Declaration of Daryn Rush, dated October 5, 2011, and exhibitsthereto, Petitioners ACE Property & Casualty Insurance Company ("ACE P&C ") and Illinois

,NUnion Insurance Co mpany ("Illinois Union") (collectively "AC E" or "Petitioners"), by andthrough their attorneys Gibbons P.C., will move this Court at a time and place to be set j?y the"''Court after the filing of proof of service herein, for an Order confirming the arbitrationmwafidsdated on October 16, 2010 and February 1, 2011. \>

Qs


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PLEASE TAKE FURTHER NOTICE that oral argument is not requested unlessopposition is filed.Dated: New York, NY

Octobers , 2011GIBBONS P.C.One Pennsylvania Plaza, 37 th FloorNew York, New York [email protected]: 212-613-2027Fax: 212-554-9648

Mark W . Stoutenburg-and-Daryn E. RushThomas E. Klemm1700 Two Logan Square18th & Arch StreetsPhiladelphia, PA [email protected]@gibbonslaw.comPh: 215-446-6220Fax: 215-446-6336Attorneys for PetitionersACE P roperty & Casualty InsuranceCompan y and Illinois Union InsuranceCompany
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORKIn the Matter of the Arbitration BetweenACE PROPERTY & CASUALTY INSURANCE |COMPANY (f/k/a CIGNA PROPERTY &CASUALTY INSURANCE COMPANY) assuccessor in interest and assignee of IMPERIALCASUALTY AND INDEMNITY COMPANY, andILLINOIS UNION INSURAN CE COMPANY(f/k/a GATX INSURANCE COMPANY),

Petitioners,and

AXA RE, as successor to ANCIENNE MUTUELLEand L'ABEILLE IGARD,Respondent.

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PETITION TO CONFIRMARBITRATION AWARDS

Petitioners, ACE Property & Casualty Insurance Com pany ("ACE P& C") and IllinoisUnion Insurance C ompany ("Illinois Union") (collectively "A CE "), hereby petition this Court toconfimi as ajudgroent pursuant to Section 207 of the Federal Arbitration A ct, 9 U.S.C. 207,the awards in the arbitration between the above parties.

The Parties1. Petitioner, ACE P&C , is an insurance comp any organized under the laws of

Pennsylvania, with its principal place of business in Philadelphia, Pennsylvania. ACE P&C isauthorized to do business in the state of New York. ,:.;

2. Petitioner, Illinois Union, is an insurance company organized under tKeTaw s of ...Illinois, with its principal pla ce of business in Philadelph ia, Pennsylvania. Illinois Unit>i is , authorized to do business in the state of New York.


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3. Upon information and belief, Respondent, A XA Re, is an insurance companyorganized under the laws of France, with its principal place of business in Paris, France.

Jurisdiction4. This Petition is submitted under Chapter 2 of the Federal Arbitration Act (the

"FAA"), 9 U.S.C . 201-208 , which provides for enforcement of the Convention on theRecognition and Enforcement of Foreign Arbitral Awards of June 10,1958 (the "New YorkConvention"). 9 U.S.C. 201 . This proceeding involves comm ercial arbitration agreements thatare not entirely between citizens of the United States, and thus falls within the New YorkConvention. 9 U.S.C. 202.

5. This Court has jurisdiction pursuant to Section 203 of the FAA, which provides:"An action or proceeding falling under the [New York] Convention shall be deemed to ariseunder the laws and treaties of the United S tates. The district courts of the United States . .. shallhave original jurisdiction over such an action or proceeding, regardless of the amount incontroversy." 9 U.S.C. 20 3.

6. This Court also has jurisdiction pursua nt to 28 U.S.C . 1332(a)(1) becau se thePetitioners are citizens of Pennsylvania and Illinois and Respondent is a citizen of a foreigncountry, France, and the amount in controversy exceeds $75,000, exclusive of interest and costs.

7. Venue is proper in this district because Section 204 of the FAA provides that apetition to confirm an arbitration award under the New York Convention "may be brought in anysuch court in which save for the arbitration agreement an action or proceeding with respect to thecontroversy b etween the parties could be brought. . . ." 9 U.S.C . 204. In the absence ofagreements to arbitrate, AC E P&C and Illinois Union could have sued AXA Re in this Court.Venue is also proper in this district because the parties designated a location within the Southern


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District of New York as the site for the hearings, which were conducted in October 2010 andFebruary 2011.

8. Pursuant to the service of suit clause in the contracts identified below, AXA Reconsented to jurisdiction of any court of com petent jurisdiction within the United States.

The Reinsurance Contracts and the Arbitration Clauses9. Reinsurance is insurance for insurance com panies. In reinsuranc e, the insurer

(often referred to as the "ceding company") transfers (or "cedes") a portion of its liability to areinsurer.

10. A retrocessional con tract is a reinsurance contract that further reinsu res areinsurer. The reinsurer in this context is sometime s referred to as "retrocessionn aire."Illinois Union Contracts

11 . Illinois Union w as formerly know n as GATX Insurance Company ("GIC"), acompany that was incorporated in Illinois in 1973.

12 . AX A Re, is the successor to Ancienne Mutuelle ("Ancienne") and L'AbeilleIGARD ("L'Abeille").

13. In the 1970's, Ancienne and L'Abeille participated as reinsurers andretrocessionaires in a comprehensive insurance/reinsurance program.

14. Initially, Ancienne and L'Abeille reinsured GIC under certain retrocessionalcontracts (the "Illinois Union Contracts").

15. The Illinois Union Contracts contain an arbitration clause that provides inpertinent part as follows:

Should any difference of opinion arise between the Reinsurers andthe Comp any which cannot be resolved in the normal course ofbusiness with respect to the interpretation of this Agreement, the


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difference shall be submitted to arbitration by a Board ofArbitration consisting of two arbitrators and an umpire.

The Board shall be relieved from all judicial formalities and mayabstain from following the strict rules of law and they shall maketheir award with a view to effecting the general purpose of thisAgreement rather in accordance with the literal interpretation ofthe language, and the decision of the majority shall be final andbinding upon the parties under this Agreement.See Declaration of Daryn E. Rush at If 2, a copy of which is attached hereto as Exhibit 1(hereinafter "Rush Decl.").ACE P&C Contracts

16. In subsequent years, Ancienne and L'Abeille reinsured Imperial Casualty andIndemnity C ompany ("Imperial") under various reinsurance contracts (the "ACE P&CContracts").

17. Imperial assigned its rights and obligations under such contracts to ACE P&C.18. The ACE P&C Contracts contain an arbitration clause that provides in pertinent

part as follows:Should any difference of opinion arise between the Reinsurers andthe Com pany wh ich cannot be resolved in the normal cou rse ofbusiness with respect to the interpretation of this Agreement, thedifference shall be submitted to arbitration by a Board ofArbitration consisting of two arbitrators and an umpire.

The Board shall be relieved from all judicial formalities and mayabstain from following the strict rules of law and they shall maketheir award with a view to effecting the general purpose of thisAgreement rather in accordance with the literal interpretation ofthe language, and the decision of the majority shall be final andbinding upon the parties under this Agreement.

See Rush Decl. at j 3.


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Arbitration and Awards19. Illinois Union and ACE P&C sought recoveries from AXA Re under the Illinois

Union Contracts and the ACE P& C Contracts. See Rush De cl. at 1 4 .20. AXA Re disputed its liability under the contracts. See Rush Decl. at f 5.21. On February 2, 2006, and pursuant to relevant arbitration provisions, ACE

submitted an arbitration demand regarding the disputed recov eries from A XA Re. See Ru shDecl. at If 6.

22. Each party appointed an arbitrator, and the umpire was chosen in accordance withthe arbitration clause in the contracts. See Rush Decl at f 7.

23. The parties held a telephonic Organizational Meeting on March 10, 2010. SeeRush Decl. at 11 8.

24. The parties and the Arbitration Panel agreed at the Organizational Meeting to bebound by a Confidentiality Agreement w hereby the parties and P anel agreed not to disclose"Arbitration Information" to third parties except as set forth in the Confidentiality Agreement.See Rush Decl. at If 9.

25. Pursuant to the Confidentiality Agreement, the parties agreed that, subject to courtapproval, any submissions of Arbitration Information to a court in connection with a petition toconfirm, m odify or vaca te an award shall, be filed u nder seal. See Rush Dec), at lj 9. Inaccordance with the Confidentiality Agreement, ACE has filed a separate Motion to Seal thewithin Petition to Confirm Arbitration Aw ards.

26. Following the Organizational M eeting, the parties engaged in documentdiscovery. By agreem ent, there were no depositions. See Rush Decl. at 1 10.


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27. An arbitration hearing was conducted in New Y ork on O ctober 12 and 13, 2010,at which time the parties presented evidence by way o f documents and testimony. See RushDecl. atf 11 .

28. Closing arguments were made on October 13, 2010. See Rush Decl. at f 12 .29. Following deliberations, the Panel issued an Order on October 16, 2010 (the

"October 16, 2010 Award"). See Rush Decl. at 1 1 3 .30 . On February 1, 2011, a further hearing was held in New York City at which time

counsel for both parties made oral presenta tions. See Rush Decl. at f 14.31 . On February 3, 2011, the Arbitration Panel issued an Award (the "February 3,

2011 Aw ard"). See Rush Decl. at f 15 .32 . AXA Re has not moved to vacate, modify or correct the October 16, 2010 Awardor the February 3 , 2011 Award. See Rush Decl. at *f 16.

33 . For the reasons set forth herein and in the accompanying Memorandum of Law,the October 16 , 2010 Award and the February 3, 2011 Award should be confirmed.

34. Wherefore, ACE respectfully requests that the Court enter an order pursuant to 9U.S.C. 207 confirming the October 16, 2010 A ward and the February 3, 2011 Award anddirecting that judgment be entered thereon.


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Dated: New York, NYOctobers , 2011GIBBONS P.C.One Pennsylvania Plaza, 37 th FloorNew York, New York [email protected].: 212-613-2027Fax^24-X-5$By:

Mark W. Stoutenburg-and-Daryn E. RushThomas E. Klemm1700 Two Logan Square18th & Arch S treetsPhiladelphia, PA [email protected]@gibbonslaw. comPh: 215-446-6220Fax: 215-446-6336Attorneys for PetitionersACE Prop erty & C asualty InsuranceCompany and Illinois Union InsuranceCompany
mailto:[email protected]:[email protected]:[email protected]:[email protected]

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ACE PROPERTY & CASUALTY INSURANCE COMPANY v. AXA RE Petition to Confirm Arbitration