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ALLSTATE INS. CO. v. ADMINISTRATIA ASIGURARILOR DE

April 28, 1997

ALLSTATE INSURANCE COMPANY, Plaintiff, against ADMINISTRATIA ASIGURARILOR DE STAT; ASIGURAREA ROMANEASCA S.A.; ASTRA S.A.; CAROM S.A.; REASEGURADORA ALBATROS; ALLAMI BIZTOSITO BANCO DE SEGUROS DEL ESTADO; CAISSE NATIONALE DE REASSURANCE; CESKA STATNI POJISTOVNA; EASTERN MARINE & FIRE INSURANCE CO., LTD.; INSTITUTO NACIONAL DE REASEGUROS; KUWAIT INSURANCE CO., S.A.K.; COMPANIA MERCANTIL DE MUNDIAL DE PANAMA, S.A.; PAN KOREA INSURANCE CO.; PHILIPPINE REINSURANCE CORP.; POZAVAROVALNA SKUPNOST SAVA; SOCIETE D'ASSURANCE SYRIENNE S.A.; P.T. REASURANSI UMUM INDONESIA; UNIVERSAL GUARANTEE INSURANCE CO. OF AUCKLAND; HALVANON INSURANCE CO., LTD.; KOREAN REINSURANCE CORP.; MILLI REASSURANS, T.A.S.; MILLI REASSURANS, R.C.D.; SOCIETE CENTRALE DE REASSURANCE; SEGUROS LA TERRITORIAL, S.A.; CAJA NACIONAL DE AHORRO Y SEGURO; INTERNATIONAL FIRE & MARINE INSURANCE CO., LTD.; GRUPO UNIVERSAL DE REASEGUROS P.T. ASURANSI ANTAR MALAYAN BALI; EASTERN GENERAL REINSURANCE CORP.; P.T. ASURANSI KREDIT INDONESIA; ASEGURADORA MUNDIAL, S.A.; SEGUROS PROGRESO, S.A.; MUTUELLE CENTRALE MAROCAINE D'ASSURANCE; GROUPE KLEBER, Defendants.


The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge :

 Presently before this Court is a cross-motion for summary judgment which defendant Administratia Asigurarilor de Stat ("defendant" or "ADAS") brought as part of a series of motions decided by this Court in Allstate Ins. Co. v. Administratia Asigurarilor de Stat, 875 F. Supp. 1022 (S.D.N.Y. 1995) (the "1995 Opinion"). The 1995 Opinion, however, did not explicitly adjudicate ADAS's cross-motion for summary judgment, a fact which was brought to this Court's attention only recently. To rectify this situation, this Court presently will consider ADAS's cross-motion. For the following reasons, ADAS's cross-motion is denied.

 BACKGROUND

 The instant case arises out of a complex series of international insurance, reinsurance, and retrocession transactions. The details of these transactions are set forth in two previous decisions of this Court, see id. 875 F. Supp. 1022 at 1023-25; Allstate Ins. Co. v. Administratia Asigurarilor de Stat, 948 F. Supp. 285, 289-92 (S.D.N.Y. 1996), and a familiarity therewith is assumed. Accordingly, only those facts necessary to resolving the instant motion will be discussed.

 ADAS was an insurance company organized in 1952 under the laws of the former Socialist Republic of Romania ("SRR"). (ADAS's Memorandum of Law in Support of Cross-Motion to Dismiss Complaint and in Opposition to Plaintiff's Motion to Amend Complaint and Compel Pre-Answer Security, Allstate Ins. Co. v. Administratia Asigurarilor de Stat, 86 Civ. 2365 ("ADAS Memo") at 1 (Mar. 29, 1993).) Until its dissolution in 1990, ADAS, was "100% owned by the SRR." Id. In 1975, ADAS executed in Bucharest, Romania a retrocession agreement (the "Retrocession Agreement") by which the POSA Group, acting on behalf of Seguros La Republica ("SLR"), Allstate's reinsurer, "ceded to ADAS certain shares of reinsurance which are the subject of Allstate's claim against ADAS in this action." Id. at 2.

 ADAS maintains that, "after discovering fraudulent conduct by [the] POSA [Group] and certain of its affiliates . . . ADAS commenced an action in 1981 in the Bucharest Court of District No. 3 for rescission of the Retrocession Agreement and other agency and reinsurance contracts to which ADAS was a party." Id. ADAS contends that "the Bucharest Court subsequently rendered Civil Judgment No. 2459 . . . on January 24, 1983 rescinding and declaring void ab initio the Retrocession Agreement and the other agency and reinsurance agreements among ADAS, the POSA entities, and [SLR]" (the "Bucharest Judgment"). Id. at 2-3; see also (Notice of Cross-Motion to Dismiss the Complaint, Allstate Ins. Co. v. Administratia Asigurarilor de Stat, 86 Civ. 2365 ("Notice of Cross-Motion") at Exh. C (Mar. 29, 1993).)

 ADAS further asserts that "as a consequence of the revolutions in 1989 in Eastern Europe and, particularly, in Romania, the SRR was abolished and a new political regime oriented toward democracy and a free market economy was established in Romania." Id. at 3. The new Romanian regime privatized that country's economy and "dissolved state companies previously owned by the SRR and formed new shareholders commercial companies." Id. ADAS contends that pursuant to a 1990 Executive Order (the "Executive Order"), (Notice of Cross-Motion at Exh. D), "ADAS was dissolved by the Republic of Romania effective January 1, 1991." (ADAS Memo at 3.) The Executive Order divested ADAS of all of its assets and established three new companies to which ADAS's liabilities and assets were transferred. Id. These new companies are: (1) Astra S.A. ("Astra"); (2) Asigurarea Romaneasca S.A ("Asigurarea Romaneasca"); and (3) Carom S.A ("Carom"). Id. at 4. ADAS claims that its foreign reinsurance business was transferred to Astra, and that neither Asigurarea Romaneasca nor Carom have any connection to any of ADAS's transactions underlying the instant litigation. Id.

 In support of its cross-motion for summary judgment, ADAS makes two arguments. First, ADAS contends that the Bucharest Judgment, which allegedly renders the Retrocession Agreement underlying Allstate's claims void, "is entitled to recognition and enforcement by this Honorable Court" under both New York law and the doctrine of international judicial comity. Id. at 5. Second, ADAS asserts that pursuant to the Executive Order issued by the new Romanian regime, it now lacks the capacity to be sued in an American court. Id. at 11. As noted above, ADAS brought the instant cross-motion as part of its opposition to Allstate's motions to amend its complaint and to compel defendants to file pre-answer security. In the 1995 Opinion, this Court granted Allstate's motion to amend its complaint, and denied Allstate's motion to compel defendants to file pre-answer security. See Allstate, 875 F. Supp. at 1030. This Court, however, did not expressly address ADAS's cross-motion for summary judgment in rendering those determinations.

 As a result, this Court has yet to consider the effect of the Bucharest Judgment and the Executive Order upon the merits of Allstate's claims against ADAS. Because these issues have never been considered, they do not constitute the law of the case, see Quern v. Jordan, 440 U.S. 332, 347 n.18, 99 S. Ct. 1139, 1148 n.18, 59 L. Ed. 2d 358 (1979); 18 Charles A. Wright et al., Federal Practice & Procedure ยง 4478, at 789 (1981) ("questions that have not been decided do not become law of the case merely because they could have been decided"), and thus are properly resolved in the instant opinion.

 DISCUSSION

 As a preliminary matter, this Court will set forth the legal standard controlling the resolution of ADAS's cross-motion for summary judgment.

 I. SUMMARY JUDGMENT STANDARD

 Pursuant to Rule 56, summary judgement is appropriate where "the pleadings, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970). The movant may discharge this burden by demonstrating to the court that there is an absence of evidence to support the non-moving party's case on an issue which that party would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). As the Second Circuit has noted, "it has long been the rule that on summary judgment the inferences to be drawn from ...


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