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Marsh & McLennan Companies, Inc. v. Gio Insurance Limited

United States District Court, Second Circuit

August 6, 2013

Marsh & McLennan Companies, Inc., Plaintiff,
v.
GIO Insurance Limited, Defendant.

OPINION & ORDER

PAUL A. CROTTY, District Judge.

In this insurance coverage dispute, Plaintiff Marsh & McLennan Companies, Inc. ("MMC") seeks payment under two policies for professional liability coverage issued by Defendant GIO Insurance, Ltd. ("GIO"). GIO moves to dismiss the action in favor of arbitration, or in the alternative, stay the action pending arbitration. In addition, GIO moves for release of the $1.5 million security it has deposited with the Court. For the following reasons, GIO's motions to dismiss and release its security are denied, and its motion to stay is granted.

BACKGROUND

A. Factual Background[1]

MMC is incorporated in Delaware and has its principal place of business in New York, New York. GIO is an Australian corporation with its principal place of business in Sydney, Australia. MMC purchased professional liability insurance from several insurers for "Errors & Omissions" or "E&O" coverage. (Compl. 6-14, ECF No. 1-1.) During the period of September 30, 1999 through September 30, 2000, MMC's E&O coverage included a primary layer and two layers of excess coverage. (Id. Tit 7-9.) The primary layer was insured by Epsilon Insurance Company, Ltd., MMC's captive carrier (the "Epsilon Policy" (ECF No. 1-3)). (Compl. ¶ 8.) GIO insured a portion of the two excess layers (collectively, the "GIO Policies" (ECF No. 1-2)). (Compl. Tit 11-12.) MMC alleges it made various claims under the GIO Policies, but GIO has refused to pay the full amounts owed. (Compl. ¶¶ 18, 26, 27.)

B. Procedural History

On October 19, 2011, MMC filed a complaint in New York State Supreme Court asserting breach of contract claims against GIO. GIO removed the action to this Court on November 18, 2011. (ECF No. 1.) On August 31, 2012, the Court denied GIO's motion to dismiss for lack of personal jurisdiction. (ECF No. 23.) The Court also ruled, on November 26, 2012, that pursuant to New York Insurance Law Section 1213(c)(1), GIO as an "unauthorized foreign or alien insurer" was required to post $1.5 million in security prior to filing any pleading in this action. (ECF No. 32.) GIO complied with the Court's order, posted security, and on December 19, 2012, filed the instant motion to dismiss and for release of its security.

C. The Arbitration Provisions

The Epsilon Policy contains an arbitration provision, which provides:

Any dispute arising under this policy shall be finally and fully determined in London, England under the provisions of the English Arbitration Act of 1950, as amended and supplemented, by a Board composed of three arbitrators to be selected for each controversy as follows:
Any party to the dispute may, once a Claim or demand on his part has been denied or remains unsatisfied for a period of twenty (20) calendar days by any other, notify the others of its desire to arbitrate the matter in dispute and at the time of such notification the party desiring arbitration shall notify any other party or parties of the name of the arbitrator selected by it....
The Insured shall be entitled to assert Claims against the Company for coverage under this policy... in an arbitration between the Company and the Insured pursuant to this Section.... (Epsilon Policy at 10-11.)

The GIO Policies each contain an incorporation clause that adopts the provisions ...


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