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Aioi Nissay Dowa Insurance Company Ltd v. Prosight Specialty Management Company

August 21, 2012

AIOI NISSAY DOWA INSURANCE COMPANY LTD.,
PETITIONER,
v.
PROSIGHT SPECIALTY MANAGEMENT COMPANY, INC., F/K/A MUTUAL MARINE OFFICE, INC., AND NEW YORK MARINE AND GENERAL INSURANCE COMPANY,
RESPONDENTS.



The opinion of the court was delivered by: J. Paul Oetken, District Judge:

MEMORANDUM AND ORDER

Petitioner Aioi Nissay Dowa Insurance Company, Ltd. ("Aioi") has petitioned the Court pursuant to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517 (the "New York Convention"), implemented by and reprinted at 9 U.S.C. §§ 201, et seq., and Section 9 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 9, to confirm an arbitration award (the "Final Award") rendered on March 20, 2012 against Respondents ProSight Specialty Management Company, Inc., formerly known as Mutual Marine Office, Inc. ("ProSight") and New York Marine and General Insurance Company ("New York Marine") (collectively, the "ProSight Parties" or "Respondents"). Petitioner also requests that the Court award it its "costs of suit." (Petition to Confirm Arbitration Award, Dkt. No. 1-1 ("Petition").) Respondents do not oppose confirmation of the Final Award, but do oppose granting Petitioner the "costs of suit." Respondents have also moved separately for the Court to seal the record of this Petition, and in particular, to seal the Final Award itself, arguing that publication of the documents connected to this Petition would violate a confidentiality agreement entered into by the parties. For the reasons set forth below, the petition is granted and the Final Award is confirmed. As the prevailing party, Petitioner is entitled to its court costs pursuant to Fed. R. Civ. P. 54(d). The motion to seal is denied.

I. Background

A. Facts*fn1

On December 16, 1999, the ProSight Parties, which are aviation insurance companies, entered into two aviation reinsurance contracts with Aioi's predecessor, The Chiyoda Fire and Marine Insurance Co. Ltd. ("Chiyoda"). Those contracts obligated Aioi, as successor to Chiyoda, to reinsure the ProSight parties for certain percentages of covered losses, with a set maximum amount "per event" for the period January 1, 2000 through March 31, 2001. (Petition ¶ 7.) On February 13, 2001, the same parties entered into two aviation reinsurance contracts obligating Aioi to reinsure the ProSight parties for different percentages of covered losses and with different maximum coverage amounts. (Id. ¶ 8.) (These contracts are collectively referred to as the "Contracts.")

Each of the Contracts contains an arbitration clause, which reads in relevant part as follows:

All disputes or differences arising out of the interpretation of this Contract shall be submitted to the decision of two arbitrators, one to be chosen by each party, and in the event of the arbitrators failing to agree, to the decision of an umpire to be chosen by the arbitrators. The arbitrators and umpire shall be executive officials chosen from the aviation insurance or reinsurance community. . . . The arbitration proceeding shall take place in New York, New York and shall be subject to the laws of the State of New York. . . . The arbitrators and umpire are relieved from all judicial formality and may abstain from following the strict rules of law. They shall settle any dispute under the Contract according to an equitable rather than a strictly legal interpretation of its terms and their decision shall be final and not subject to further appeal.

(Id. ¶ 10.)

The ProSight parties insured their policyholders American Airlines, United Airlines, and the Boeing Company for liabilities arising from the terrorist attack on the World Trade Center on September 11, 2001 (the "WTC Loss"), and Aioi reinsured the payments made by the ProSight parties to or on behalf of their policyholders for these losses.

The arbitration concerned issues of contract interpretation with respect to the Contracts. Specifically, the parties disputed whether the WTC Loss was a single "event," subject to one retention and one limit under each of the Contracts, or if it constituted two events, and hence was subject to two retentions and two limits under each Contract.

An arbitration panel (the "Panel") was convened, and both sides accepted the Panel as it was constituted. The Panel conducted an evidentiary hearing in New York, New York from March 13-16, 2012, at which time the Panel heard witness testimony, accepted documents into evidence, and heard argument from counsel. Following the hearing, the Panel issued the Final Award that concluded, inter alia, that "[b]ecause the WTC Losses occurred within one 24 hour period and within a 10 mile radius, the Panel . . . DECLARES that all such losses constitute one event" under the Contracts. (Final Award at 3.)

In connection with the arbitration, the parties entered into a confidentiality agreement under which the parties agreed that, "subject to court approval, . . . all submissions of Arbitration Information to a court shall be sealed." (Conf. at ¶ 3.) "Arbitration Information" was defined to include the "final award and any interim decisions." (Id. ¶ 2.) The agreement also provided that "[i]n all contexts, all parties will make good-faith efforts to limit the extent of the disclosures, if any, to be made, and will cooperate with each other in resisting or limiting disclosure of Arbitration Information." (Id.) The agreement also provided that the parties "recognize[d] that serious injury could result to any party and its business if the other party breaches its obligations" under the agreement. (Id. ¶ 7.)

B. Procedural History

Aioi filed the instant petition on April 25, 2012. Aioi did not include with its petition a copy of the Final Award in order to comply with the parties' confidentiality agreement. Separately, on May 1, 2012, Aioi submitted a letter to the Court that enclosed the Final Award and the parties' confidentiality agreement. That letter also stated that Aioi could not argue in good faith that the Final Award meets the Second Circuit's standard for ...


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