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United States District Court, S.D. New York

March 17, 2004.


The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


Defendant Certain Underwriters at Lloyd's London ("Lloyd's Underwriters" or "defendant") moves to dismiss the Amended Complaint with respect to it, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. For the following reasons, Lloyd's Underwriters' motion is denied.


  Plaintiff Caribbean Petroleum Refining LP ("Caribbean Refining") is the owner of a petroleum refinery in Bayamon, Puerto Rico. ("the Bayamon refinery"). The second named plaintiff, Caribbean Petroleum Corporation ("Caribbean Petroleum"),*fn1 is the named insured under the insurance policy at issue in this dispute and is a Delaware corporation with its principal place of business in Bayamon, Puerto Rico. Amended Complaint ("Am. Compl") ¶¶ 9, 20. With the hope of restarting operations at the Bayamon refinery, which had been idle for a period of years, in April 1998 plaintiffs decided to inspect the facility. Am. Compl. ¶¶ 1, 24. Before plaintiffs inspected the facility, they contacted defendant Aon and provided it with detailed plans Page 2 of the inspection in order to ascertain whether any additional premium was required to cover the inspection. Am. Compl. f 25. Plaintiffs were informed that no such additional premium was required. Am. Compl. ¶ 26. Based on the inspection, the plaintiffs decided to refurbish the Bayamon refinery and, accordingly, requested that Aon obtain appropriate coverage for the refurbishment and start-up. Am. Compl. ¶¶ 27-28. Plaintiff specifically requested that Aon obtain coverage for business-interruption losses and provided information intended to obtain such coverage. Am. Compl. ¶¶ 30-31. In addition, Aon was separately advised by plaintiffs' insurance consultant to obtain business-interruption coverage in connection with refurbishment and start-up of the Bayamon refinery. Am. Compl. ¶ 33. The Bayamon refinery was insured under a policy issued by Lloyd's (policy number EL9800325) for the period from March 30, 1998 to March 30, 1999. Am. Compl. ¶ 19. Plaintiffs allege upon information and belief that by agreements among the Lloyd's Underwriters, New Hampshire Insurance Company,*fn2 and Allianz, each of these defendants shares a portion of the risk insured under the policy. Am. Compl. ¶ 20. In July 1998, plaintiffs began to refurbish the Bayamon refinery. Am. Compl. ¶ 2. On August 31, 1998, Aon advised plaintiffs that it issued a binder*fn3 for the additional coverage, including coverage for business-interruption losses. Am. Compl. ¶ 4, 33.

  Three weeks later, on September 21, 1998, Hurricane George struck Puerto Rico. and caused substantial damage to the Bayamon refinery and delayed its refurbishment and start-up by three months. Am. Compl. ¶ 36. Plaintiffs made a claim for physical damage to the Bayamon refinery in excess of $12 million. The parties subsequently reached a settlement with respect to this claim. Plaintiffs also made a claim for business-interruption amounting to $5,237,089, which represented the amount claimed as the loss ($5,709,419) less a deductible of $472,330. Am. Compl. ¶¶ 6, 35-38. By letter dated April 17, 2001, New Hampshire denied coverage for plaintiffs' business-interruption claim on the basis that the policy did not provide coverage for Page 3 business-interruption losses, and Allianz did so as well by letter dated July 2, 2001. Am. Compl. ¶¶ 38-39. By letter on August 26, 2002, plaintiffs requested New Hampshire to reconsider its denial of plaintiffs' business-interruption claim. Am. Compl. ¶¶ 41, 43.

  Plaintiffs filed a complaint in New York State Supreme Court on August 5, 2003 against three insurance carriers — American International Group ("AIG"),*fn4 Certain Underwriters at Lloyd's London, and Allianz Insurance — and against Aon as the insurance broker. On September 5, 2003, AIG and Allianz removed the matter to federal court. Plaintiffs' instant lawsuit with respect to the carriers seeks a declaration that business-interruption losses were covered under the policy, that the policy was in effect, and that these insurance carriers breached this contract when they denied plaintiffs' claim for business-interruption losses.


  Lloyd's Underwriters contends that plaintiffs' claims against it must be dismissed on the ground that plaintiffs have failed to sue the "Names" or syndicate members who assumed the portion of the risk on the Policy at issue and instead have improperly sued the Corporation of Lloyd's, which does not issue, write, or sell insurance and does not take part in adjusting insurance claims. Lloyd's Underwriters also move for costs against plaintiffs for the "needless expenses in defending a baseless coverage suit." Memorandum of Law in Support of Defendant Certain Underwriters at Lloyd's Motion to Dismiss the Complaint ("Underwriters' Mem.") at 9. Plaintiffs contend that defendant in effect seeks the dismissal of an entity that has not been named in the suit and that their use of "John Doe", — i.e., "Certain Underwriters at Lloyd's" — is frequently employed in litigation in the United States and contemplated by N.Y.C.P.L.R. § 1024.

 A. Standard of review

  On a motion to dismiss under Rule 12(b), all well-plead factual allegations are taken as true, and all reasonable inferences are construed in favor of the plaintiff. Leeds v. Meltz, 85 F.3d 51, 52 (2d Cir. 1996). Dismissal of the complaint is appropriate only when it appears that the Page 4 plaintiff cannot prove a set of facts "in support of his claim which would entitle him to relief." Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995).

 B. Merits

  A central premise in Lloyd's Underwriters' initial motion to dismiss was that the plaintiffs named Lloyd's of London as defendant. For example, under the heading "no breach of contract claim can be made against Lloyd's as defendant Lloyd's was not a party to the insurance contract at issue," Underwriters' Mem. at 8 (bold, underline, and uppercase removed), defendant argues:

Here again, Lloyd's does not issue, sell, or write insurance, and was clearly never a party to the contract for the insurance coverage allegedly issued to plaintiffs in this action. As such, the plaintiffs have no right of relief from Lloyd's based on their breach of contract theory because they simply cannot establish the existence of an agreement between Lloyd's and the plaintiffs. . . .
Id.*fn5 Accordingly, Lloyd's Underwriters sought the dismissal of the claims against them because Lloyd's of London is not the proper party to this action; defendant suggested at various points that the proper party for plaintiffs to sue here are the "Names" or syndicate members who assumed the risk. Underwriters' Mem. at 7 ("Plaintiffs have improperly sued Lloyd's by failing to name the appropriate Names/syndicate members who assumed the portion of risk on the Policy at issue.").*fn6 This point needs little discussion, as it is clear that plaintiffs did not sue Lloyd's of London, the insurance market, but rather sued certain underwriters (who are currently unidentified) who wrote a policy through that marketplace. Thus, defendant's observations about how Lloyd's of London does not issue insurance policies, but rather, is an insurance market for Page 5 the buying and selling of insurance risks*fn7 are informative, but mostly beside the point

  This otherwise simple and straightforward issue is complicated because plaintiffs did not attach a copy of the policy at issue in this lawsuit, EL9800325, to the complaint, the amended complaint, or to their brief in connection with this motion.*fn8 The Court subsequently received a copy of the 42-page "Package Policy" for the policy number EL9800325. Although the term "underwriters" appears frequently in this document, it is nowhere defined or otherwise identified in this document — or at least in that portion of the document that the Court received.*fn9 While it is evident that the material received by the Court is not a complete contract, there are nevertheless two endorsements included at the end of the policy that indicate that the policy was issued by "Certain Underwriters at Lloyd's London."*fn10 Defendant argues with some force that plaintiffs here have failed to produce an actual Lloyd's policy, but nevertheless, there is some evidence that a Lloyd's-related entity was involved in the underwriting of this risk.*fn11 Therefore, accepting all well-plead allegation as true and construing all reasonable inferences in favor of the plaintiffs, I find that there is sufficient evidence that the policy was issued by Lloyd's.*fn12 Thus, it cannot be Page 6 said that plaintiffs' action against Lloyd's Underwriters is "fundamentally frivolous," as defendant argues. Reply Memorandum of Law in Support of the Motion to Dismiss by Defendant Certain Underwriters at Lloyd's ("Underwriters' Reply") at 3.

  As defendant notes in its summary of Lloyd's of London, it is a complex marketplace that occasionally addles American courts. E.R. Squibb & Sons. Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 939 (2d Cir. 1998) ("Squibb I") (Lloyd's of London "operates in accordance with age-old customs that are, to say the least, unusual in American business law."). *fn13 It appears from the case law that the proper party in a suit against a Lloyd's policy is the "Name" who serves as the lead underwriter and who is ordinarily disclosed on the policy.*fn14 Squibb I, 160 F.3d at 939 ("When litigation over a Lloyd's policy occurs, only one Name (the lead underwriter disclosed on the policy) is ordinarily sued."). However, as noted above, the policy that the Court has Page 7 received does not disclose the identity of the lead underwriter.*fn15 Nevertheless, as plaintiffs point out, there are many lawsuits brought against "Certain Underwriters of Lloyd's" (or some variation thereof); more significantly, suits are often brought by "Certain Underwriters of Lloyd's." E.g., Certain London Mkt. Ins. Cos. v. Pa. Nat'l Mut. Cas. Ins. Co., 269 F. Supp.2d 722, 725-26 (N.D. Miss. 2003) (listing cases); see also Roby. 796 F. Supp. at 111 (noting that there are many lawsuits in which Lloyd's of London "syndicates" have been sued and have sued or asserted counterclaims, but also noting that in none of those cases was the question of a syndicate's legal existence ever raised); Dallas Glen Hills, L.P. v. Underwriters at Lloyd's London, No. 3:03-CV-0295-D, 2003 U.S. Dist. LEXIS 10490, at *9 (N.D. Tex. June 19, 2003) ("Suits against Lloyd's, London generally proceed against one of the following: (1) all the Names or syndicates subscribing to the risk involved in a policy, (2) the lead underwriter subscribing to a policy, (3) an individual syndicate acting in its representative capacity on behalf of all those subscribing to a risk, (4) an individual syndicate acting in its individual capacity, and (5) possibly, an individual name." (footnotes omitted)). *fn16 The argument that defendant asserts here Page 8 is very similar to one asserted in Certain London Market Insurance Companies, a declaratory-judgment action in which the defendant contended that "Certain London Market Insurance Companies" (the plaintiff there) was not a proper legal entity and that the four companies that subscribed to the policy issued through Lloyd's should be named. Certain London Mkt. Ins. Cos., 269 F. Supp.2d at 725. The court there stated that it could not find a case where "Certain London Market Insurance Companies" or "Certain Underwriters of Lloyd's London" was an improper party entity, and that in any event it would have permitted plaintiffs to amend the complaint, even after the bench trial, pursuant to Federal Rule of Civil Procedure 17(a) to name the real party in interest. Id. at 726.

  Accordingly, Lloyd's Underwriters' motion to dismiss for failure to state a claim is denied. Lloyd's Underwriters' attempt to recharacterize the defendant named as Lloyd's of London — the marketplace — rather than certain as-yet-unidentified underwriters that operate within that market is unpersuasive. Moreover, plaintiffs have alleged the existence of a contract and while the document that they have produced leaves many significant questions unanswered, it suffices to support plaintiffs' allegation that certain underwriters at Lloyd's of London were a party to that contract.


  For the foregoing reasons, Lloyd's Underwriters' motion to dismiss for failure to state a claim is denied. The Court of the Clerk is instructed to close this motion.


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