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Acumen Re Mgmt. Corp. v. General Sec. Nat'l Ins. Co.

United States Court of Appeals, Second Circuit

October 3, 2014

ACUMEN RE MANAGEMENT CORPORATION, Plaintiff-Appellant,
v.
GENERAL SECURITY NATIONAL INSURANCE COMPANY, Defendant-Appellee

Argued October 7, 2013

Acumen Re Management Corporation (" Acumen" ) sued General Security National Insurance Company (" General Security" ), seeking damages related to General Security's alleged breach of a reinsurance underwriting agreement. The United States District Court for the Southern District of New York (George B. Daniels, Judge) entered partial summary judgment for General Security, ruling that four of Acumen's five breach-of-contract theories were baseless and that, under all five theories, no more than nominal damages were available to Acumen. The District Court certified the judgment under Federal Rule of Civil Procedure 54(b) and closed the case. Acumen appealed, invoking Rule 54(b) certification as the basis for our Court's jurisdiction. Because the District Court's certification was improper in that its partial judgment did not address separate " claim[s] for relief," we conclude that we lack jurisdiction to reach the merits of this appeal. Accordingly, the appeal is DISMISSED.

MATHIEU J. SHAPIRO (Paul H. Aloe, Kudman Trachten Aloe LLP, on the brief), Obermayer, Rebmann, Maxwell & Hippel LLP, Philadelphia, Pennsylvania, for Acumen Re Management Corporation.

CHRISTOPHER BURGESS KENDE (Elliott Kroll, Arent Fox LLP; Edward Hayum, Cozen O'Connor, on the brief), Cozen O'Connor, New York, New York, for General Security National Insurance Company.

Before: LYNCH, CHIN, AND CARNEY, Circuit Judges.

OPINION

Page 136

Susan L. Carney, Circuit Judge :

This case arises from a reinsurer's contractual undertakings to compensate a specialized underwriter. The underwriter, Acumen Re Management Corporation (" Acumen" ), sued the reinsurer, General Security National Insurance Company (" General Security" ), for breach of contract, seeking contingent commissions alleged to be due. The United States District Court for the Southern District of New York (George B. Daniels, Judge ) entered partial summary judgment for General Security, ruling that four of Acumen's five breach-of-contract theories were baseless and that, under all five theories, no more than nominal damages were available. The District Court then certified the judgment under Federal Rule of Civil Procedure 54(b), and, notwithstanding the remaining disputed theory, closed the case.

General Security asserts that we lack jurisdiction to entertain Acumen's appeal, arguing that the District Court's certification under Rule 54(b) was improper in that its partial judgment did not address separate " claim[s] for relief." We agree, and conclude that we must dismiss the appeal.

BACKGROUND[1]

We begin with some details of the dispute. In 1994, Acumen, an underwriter, entered into the " Acumen Re Reinsurance Underwriting Agency Agreement" (the " Underwriting Agreement" ) with Sorema North America Reinsurance Company (" Sorema" ). Pursuant to the Underwriting Agreement, Sorema engaged Acumen to underwrite reinsurance of certain workers' compensation insurance, subject to detailed guidelines. The undertaking concerned " facultative reinsurance," in which Sorema, as a reinsurer, would assume on a policy-by-policy basis certain portions of risks insured as an initial matter by other companies (the " ceding companies" ).[2]

Acumen's role for Sorema was primarily to underwrite--that is, to identify, investigate, evaluate, and price--risks of a type and range that were well defined by the Underwriting Agreement. For each qualifying risk identified by Acumen and accepted by Sorema, Acumen would produce a " certificate" documenting the risk and related undertakings.

The Underwriting Agreement provided that Acumen would receive, as compensation, an eight percent commission on " net written premium received by [Sorema] on . . . certificates bound or written under [the] Agreement." The Underwriting Agreement was supplemented at its inception by a " Contingency Commission Addendum" (" Addendum" ) providing that Acumen would " be allowed a thirty percent (30%) contingent commission on [Sorema's] share of annual net profits, if any . . . arising from [certificates] bound or written under the [parties' agreement]," subject to further specified terms. The

Page 137

Addendum set out a detailed schedule and method for calculating the contingent commissions, using as factors both the profitability of the underwritten policies and the size of certain of Sorema's reserves. Together, these documents (the " Initial Agreement" ) established the terms on which Sorema would compensate Acumen for its underwriting services

Seven years later, in 2001, Sorema was acquired and became General Security. The following year, General Security and Acumen agreed to end their relationship, in the " Agreement Terminating Acumen Re Reinsurance Underwriting Agency Agreement" (" Termination Agreement" ). The Termination Agreement called for General Security to make an immediate payment of $1 million to Acumen in 2001, and, in early 2008, to calculate and pay any contingent commissions due under the Addendum for the prior underwriting years--from the start of 1997 through April 30, 2002.[3] The Termination Agreement also specified certain provisions of the Initial Agreement that would survive the termination. These included General Security's obligation to provide to Acumen quarterly reports on any ...


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