Summary
dismissing breach of contract claims for lack of privity
Summary of this case from McNulty v. Polar Corp.Opinion
2014-10-28
ONEBEACON AMERICA INSURANCE COMPANY, Plaintiff, v. COLGATE–PALMOLIVE COMPANY, et al., Defendants. Colgate–Palmolive Company, Counterclaim Plaintiff–Respondent, v. OneBeacon America Insurance Company, Counterclaim Defendant, National Indemnity Company, et al., Counterclaim Defendants–Appellants.
Simpson Thacher & Bartlett LLP, New York (Michael J. Garvey, Bryce L. Friedman, Mary Beth Forshaw and Summer Craig of counsel), for appellants. Anderson Kill P.C., New York (William G. Passannante of counsel), for respondent.
Simpson Thacher & Bartlett LLP, New York (Michael J. Garvey, Bryce L. Friedman, Mary Beth Forshaw and Summer Craig of counsel), for appellants. Anderson Kill P.C., New York (William G. Passannante of counsel), for respondent.
PETER TOM, J.P., DIANNE T. RENWICK, RICHARD T. ANDRIAS, HELEN E. FREEDMAN, and DARCEL D. CLARK, JJ.
FREEDMAN, J.
In this dispute between plaintiff OneBeacon America Insurance Company (OneBeacon) and its insured, defendant counterclaim plaintiff Colgate–Palmolive Company (Colgate), counterclaim defendant National Indemnity Company (NICO), OneBeacon's reinsurer, and its affiliated claims adjuster, counterclaim defendant Resolute Management, Inc. (Resolute), appeal from an order partially denying their motion to dismiss all of the counterclaims asserted against them pursuant to CPLR 3211(a)(7). Based on the total absence of a contractual relationship between Colgate and the counterclaim defendants, we reverse and dismiss the remaining counterclaims.
The underlying dispute between Colgate and OneBeacon arose over OneBeacon's right, under the more than 50 primary and excess liability policies it issued to Colgate (the Policies),
to control Colgate's defense against more than 20 lawsuits alleging personal injury caused by exposure to Colgate's talc products, which allegedly contained asbestos (the Talc Cases.) OneBeacon alleges that Colgate has not allowed it to control the defense of these cases, rejected the defense counsel and strategy that OneBeacon selected, and insisted on selecting its own independent counsel.
The Policies are not in the record.
In March 2013, OneBeacon filed this action, seeking, among other things, a declaration that under the Policies at issue, OneBeacon has the exclusive right to control Colgate's defense and choose its counsel. OneBeacon further seeks a declaration that it is not obligated to indemnify Colgate in any Talc Cases that Colgate defends, settles, or tries without OneBeacon's consent.
Colgate counterclaimed against OneBeacon and joined NICO and Resolute as counterclaim defendants. Only the counterclaims against NICO and Resolute are before us.
Colgate alleges that OneBeacon's contractual relationship with NICO and Resolute created a conflict of interest because they serve a dual role as both the reinsurer of OneBeacon's liability under the Policies and the claims adjuster under those Policies. Colgate asserts, among other things, that although it wants to vigorously defend the Talc Cases to deter copycat lawsuits, NICO and Resolute want to settle the cases to minimize the legal expenses.
OneBeacon has filed a separate appeal but the counterclaims against the insurer are not before us.
The relevant, undisputed facts are as follows: During an extended period ending in 1983, the Policies were either purchased directly from OneBeacon or from two of its predecessors.
In 2001, OneBeacon and NICO entered into an Aggregate Loss Portfolio Reinsurance Agreement (the Reinsurance Agreement) and a related Administrative Services Agreement (the Services Agreement). Under the Reinsurance Agreement, in exchange for a $1.25 billion premium, NICO agreed to provide OneBeacon with $2.5 billion of reinsurance coverage for the carrier's liability under the Policies. The coverage encompassed OneBeacon's liability for Colgate's “asbestos related losses.”
Henceforth the two predecessors will also be referred to collectively as OneBeacon.
The Reinsurance Agreement further provided that, in accordance with the Services Agreement, OneBeacon appointed NICO “to perform all administrative services” connected with the policies, including the settlement or payment of the reinsured claims. Finally, the Reinsurance Agreement stated that it was an indemnity insurance agreement solely between OneBeacon and NICO, and that no one other than those two parties had any rights under the contract.
In 2004, NICO and Resolute entered into an Intercompany Service Agreement (Intercompany Agreement), under which Resolute agreed, while acting as NICO's agent, to adjust Colgate's claims under the Policies. The Intercompany Agreement also provided that it could not be assigned and that NICO and Resolute did not intend the contract to confer any rights on third parties.
In 2008, the first Talc Case was filed in Supreme Court, New York County. After Colgate notified OneBeacon about the lawsuit, Resolute responded to Colgate by letter stating that it was handling the coverage claims on OneBeacon's behalf. Colgate objected and engaged counsel without consulting OneBeacon. Thereafter, OneBeacon commenced this action and Colgate counterclaimed.
On appeal, five of Colgate's counterclaims are before us: a counterclaim against Resolute for a declaration that it is entitled to independent counsel and that Resolute is prohibited from obstructing its defense of the Talc Cases (first counterclaim); a breach of contract claim against NICO (third); a claim for tortious interference with contract against Resolute (fifth); a claim for breach of the implied covenant of good faith and fair dealing against NICO (seventh); and a statutory claim against Resolute for violation of Massachusetts General Law c. 93A (ninth).
Colgate also asserts the first and ninth counterclaims as against OneBeacon, which, as noted, has filed a separate appeal.
We find that none of these counterclaims states a cause of action. Turning to the breach of contract counterclaim against NICO, Colgate alleges that, by entering into the Reinsurance Agreement, OneBeacon either assigned its rights and obligations under the Policies to NICO, or NICO assumed those rights and obligations. According to Colgate, NICO thereby became contractually obligated to it as the insured and NICO breached its contractual obligations by refusing to acknowledge Colgate's choice of counsel and refusing to pay the legal fees.
Colgate's claims raise the issue of whether an insurance policyholder has rights against its carrier's reinsurer, if the reinsurer administers the insured's claims under the policy. In a typical reinsurance arrangement, where the carrier administers claims and the reinsurer merely indemnifies it in accordance with the “follow the fortunes” doctrine ( see United States Fid. & Guar. Co. v. American Re–Ins. Co., 93 A.D.3d 14, 23, 939 N.Y.S.2d 307 [1st Dept.2012], mod. 20 N.Y.3d 407, 962 N.Y.S.2d 566, 985 N.E.2d 876 [2013] ), the insured can only state viable claims against the reinsurer in specific circumstances that do not pertain here. In this case, Colgate only holds the Policies with OneBeacon. The carrier's reinsurer, NICO, and its affiliate, Resolute, both adjust Colgate's Policy claims and indemnify OneBeacon for claim payouts. NICO's and Resolute's dual role does not, however, give rise to any liability to Colgate because Colgate lacks contractual privity with NICO and Resolute. In the absence of privity, Colgate's breach of contract claims against NICO and Resolute fail.
The Reinsurance Agreement, which is a contract only between NICO and OneBeacon, is separate and distinct from the underlying Policies ( see Unigard Sec. Ins. Co. v. North River Ins. Co., 79 N.Y.2d 576, 582, 584 N.Y.S.2d 290, 594 N.E.2d 571 [1992] ). Colgate lacks standing to state a claim against NICO for breach of the underlying Policies because NICO is not a party to those contracts ( see id. at 583, 584 N.Y.S.2d 290, 594 N.E.2d 571; Aces Mech. Corp. v. Cohen Bros. Realty & Constr. Corp., 136 A.D.2d 503, 504, 523 N.Y.S.2d 824 [1st Dept.1988] [finding “no basis for holding the ... defendant liable for the breach of a contract to which it was not a party”] ).
Colgate claims that NICO is liable under the Policies because either OneBeacon “assigned” contractual rights and obligations under the Policies to NICO, or NICO assumed obligations under the Policies. But nothing in the Reinsurance Agreement suggests an assignment or assumption. Rather, the contract indicates OneBeacon's appointment of NICO as its claims administrator for the Policies. In turn, under the Intercompany Agreement, NICO engaged Resolute to perform services for it, delegating to Resolute the obligation to fulfill its duties to OneBeacon. If Resolute, while acting for NICO on behalf of OneBeacon, breached the Policies while acting within the scope of its authority, only OneBeacon would be liable to Colgate for breach of contract. OneBeacon remains fully and solely responsible for the performance of its obligations under the Policies even if NICO and Resolute are performing those obligations on its behalf.
Moreover, without language in a reinsurance agreement indicating that the reinsurer intends to be directly liable to the insured, the reinsurer has no obligation to the original insured (Matter of Union Indem. Ins. Co. Of N.Y., 200 A.D.2d 99, 107, 611 N.Y.S.2d 506 [1st Dept.1994], affd. 89 N.Y.2d 94, 651 N.Y.S.2d 383, 674 N.E.2d 313 [1996] ). Here, the Reinsurance Agreement contains language specifically providing that, except in the case of OneBeacon's insolvency (not the case here), no third party has any rights under the contract.
Colgate argues that, because NICO administers claims under the Policies, it can sue NICO directly as its primary insurer under Klockner Stadler Hurter, Ltd. v. Insurance Co. of Pa., 785 F.Supp. 1130 [S.D.N.Y.1990] [ Klockner I ] and Klockner Stadler Hurter, Ltd. v. Ins. Co. of Pa., 780 F.Supp. 148 [S.D.N.Y.1991][ Klockner II ]. However, Klockner is distinguishable. In the Klockner cases, the insurer assigned the right to directly sue the reinsurers to the policyholder (Klockner I, 785 F.Supp. at 1134; see also Klockner II, 780 F.Supp. at 154). For this reason, the court declined to grant the reinsurer's motion for dismissal (Klockner I, 785 F.Supp. at 1134). In the absence of any special circumstances such as those in Klockner, a reinsurer is not directly liable to a policyholder merely because the reinsurer administers the policyholder's claims or makes payment under those claims ( see e.g. USX Corp. v. Adriatic Ins. Co., 64 F.Supp.2d 469, 477 [W.D.Pa.1998]; Millennium Petrochemicals, Inc. v. C.G. Jago, 50 F.Supp.2d 654, 659–660 [W.D.Ky.1999]; Pyun v. Paul Revere Life Ins. Co., 768 F.Supp.2d 1157, 1176–177 [N.D.Ala.2011]; Allendale Mut. Ins. Co. v. Crist 731 F.Supp. 928, 933 [W.D.Mo.1989] ).
Given the absence of a contract between NICO and Colgate, the claim that NICO breached the implied covenant of good faith and fair dealing also fails. Colgate argues that it adequately pleaded a separate implied covenant claim because it alleges that NICO refuses to communicate with its chosen counsel, to appoint local counsel, or to agree to confidentiality provisions in connection with disclosures about counsel's work. However, these allegations merely constitute a description of how NICO refuses to acknowledge Colgate's choice of independent counsel, which refusal is the subject of Colgate's breach of contract counterclaim against OneBeacon.
The remaining claims against Resolute should also be dismissed. No claim for tortious interference is stated because, in performing the complained-of acts, Resolute acted as a designated agent, and no action for tortious interference can lie against an agent acting within the scope of its duties on behalf of the principal (Devash LLC v. German Am. Capital Corp., 104 A.D.3d 71, 78–79, 959 N.Y.S.2d 10 [1st Dept2013], lv. denied21 N.Y.3d 863, 2013 WL 4561705 [2013] ). An agency relationship existed because NICO is OneBeacon's agent with respect to the Policies and, under the Services Agreement, OneBeacon authorized NICO to appoint agents to perform NICO's obligations under the contract. Thus NICO appointed Resolute as OneBeacon's agent ( see Manley v. AmBase Corp., 121 F.Supp.2d 758, 772 [S.D.N.Y.2000] ).
Colgate also invokes Massachusetts General Law c. 93A § 11, which provides for a private right of action to those suffering monetary losses from unfair deceptive conduct in commercial dealings. The Massachusetts statute, however, does not apply when another jurisdiction's laws govern the underlying breach of contract claims (Northeast Data Sys., Inc. v. McDonnell Douglas Computer Sys. Co., 986 F.2d 607, 609–610 [1st Cir.1993] ). While OneBeacon is domiciled in Massachusetts, the parties do not dispute that New York law governs the contracts here although none of the Policies are in the record. Colgate argues, however, that its statutory claim against Resolute is not predicated on contract-based claims. Nevertheless, the documentary evidence shows that Colgate bases its claim on Resolute's alleged duties “under the [Policies].” Accordingly, the Massachusetts statute is inapplicable.
Finally, Colgate's counterclaim for a declaratory judgment against Resolute is dismissed for failure to state a claim. Colgate contends that it seeks a declaration of its common law, extra-contractual rights to independent counsel and to defend the Talc Cases free from Resolute's interference and tortious conduct. Colgate's claim for declaratory relief is predicated on Resolute's alleged duty to Colgate as a third-party beneficiary under the Intercompany Agreement. That contract, however, explicitly provides that NICO and Resolute did not intend the contract to confer any rights on third parties.
Accordingly, the order of the Supreme Court, New York County (Carol R. Edmead, J.) entered November 4, 2013, as amended by the order of the same court and Justice, entered November 20, 2013, which, to the extent appealed from, denied so much of counterclaim defendants NICO and Resolute's motion as sought to dismiss the first, fifth and ninth counterclaims as against Resolute and the third and seventh counterclaims as against NICO, should be reversed, on the law, without costs, the motion granted, and the claims dismissed. The Clerk is directed to enter judgment in favor of the counterclaim defendants-appellants.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered November 4, 2013, as amended by order, same court and Justice, entered November 20, 2013, reversed, on the law, without costs, the motion granted, and the claims dismissed. The Clerk is directed to enter judgment in favor of the counterclaim defendants-appellants.