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BALFOUR MACLAINE INTL., LTD. v. HANSON

February 8, 1995

BALFOUR MACLAINE INTERNATIONAL, LTD., Plaintiff, against JOHN HANSON, as President of Foreign Credit Insurance Association, an unincorporated association, et al., Defendants.


The opinion of the court was delivered by: ALLEN G. SCHWARTZ

 ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 Currently pending before this Court is the motion of defendant Export-Import Bank of the United States ("Eximbank") to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. *fn1" For the reasons set forth below, we grant summary judgment in favor of defendant Eximbank dismissing all claims against that defendant.

 BACKGROUND

 During 1982 and 1983, Balfour exported goods to Comersa on credit, in a series of transactions insured by Eximbank and the participating insurers under the Medium Term and Master Policies. Amended Complaint P 8. Thereafter, Comersa defaulted on its debts to Balfour, and, in 1983 and 1984, Balfour filed claims under both policies. Id., PP 9, 10; Piepul Aff. P 11 (and attached Exhibit D). Eximbank and the participating insurers approved Balfour's claims as insured commercial credit risks under both policies. Amended Complaint, P 11; Piepul Aff. P 12. Balfour received from Eximbank and the participating insurers $ 2,633,753.03 under the Medium Term Policy and $ 271,961.55 under the Master Policy, between March 2, 1984 and May 21, 1985. Amended Complaint, P 11; Piepul Aff. P 13. Balfour executed a release in favor of Eximbank and the participating insurance companies in consideration for the foregoing payments under the policies. Piepul Aff. P 14. This release, inter alia, released Eximbank and all the participating insurers from all causes of action relating to the claims and assigned to Eximbank and the participating insurers the right to collect the money owed by Comersa to Balfour. Piepul Aff., P 14. *fn2"

 Subsequently, after negotiations between Comersa and Eximbank and FCIA, Eximbank received $ 3,164,013 in connection with the Balfour-Comersa transactions insured under the Medium Term Policy and $ 341,431 in connection with the Balfour-Comersa transactions insured under the Master Policy. Amended Complaint, P 13; Piepul Aff., P 15, 16.

 With respect to the distribution of sums recovered by either the insured or insurer after the insurer has paid a claim submitted by the insured, the Medium Term Policy provides:

 
After payment of any claim hereunder, any sums applicable to the insured transaction which are recovered from the buyer or any other source shall, after reimbursement of the expenses of recovery, be shared between the Insurers and the Insured in the proportion in which they shared in the original loss.

 Medium Term Policy at 3 (attached as Exhibit C to Piepul Aff.) (emphasis in original). The Medium Term Policy defines "insured transaction" as "a sale or sales approved by the Insurers on conditions specified in the Transaction Endorsement . . . . " Id., at 1 (emphasis in original). The Medium Term Policy also provides that the insurers bear 90% of losses incurred due to commercial credit risks, while Balfour (the insured) bears 10% of such losses. Id.

 The Master policy contains the following provision relating to claims filed by the insured and paid by the insurer:

 
After payment of any claim by the Insurers for any loss from any buyer. . . any recovery, whatsoever, from such buyer with whom a loss has been experienced shall, after reimbursement of the expenses of recovery, be shared between the Insurers and the Insured. (i) The Insurers shall be entitled to a percentage of such recovery determined [in accordance with a formula providing for pro rata distribution]. (ii) Any recovery shall be shared on the foregoing basis until the Insurers recover in full all claim payment hereunder, after which all further recoveries shall be for the account of the Insured . . .

 Master Policy at 5 (attached as Exhibit B to Piepul Aff.) (emphasis in original).

 Between September 1990 and April 16, 1991, Eximbank paid Balfour $ 316,401 in connection with the Medium Term Policy (10% of the sum recovered by Eximbank from Comersa on the transactions covered by the policy), and $ 69,375 ...


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