Zurich Insurance Company v. Crowley Latin America Services, LLC
OPINION AND ORDER re: 12 MOTION for Judgment on the Pleadings . filed by Crowley Latin America Services, LLC. For the foregoing reasons, Zurich's petition to compel arbitration is GRANTED. Crowley's motion for a judgment on the pleadings is DENIED. The parties shall proceed to arbitration in accordance with the terms of the arbitration clause in the Service Agreement. The Clerk is directed to close the motion at Docket Number 12 and to close the case. (Signed by Judge J. Paul Oetken on 12/20/2016) (cla)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ZURICH INSURANCE COMPANY a/s/o Adidas :
CROWLEY LATIN AMERICA SERVICES,
J. PAUL OETKEN, District Judge:
OPINION AND ORDER
On March 11, 2016, Petitioner Zurich Insurance Company (“Zurich”), as subrogee of
Adidas Group (“Adidas”), filed a petition to compel arbitration pursuant to the Federal
Arbitration Act (the “FAA”), 9 U.S.C. § 1 et seq., against Defendant Crowley Latin America
Services, LLC (“Crowley”). (See Dkt. No. 1.) Crowley now moves for judgment on the
pleadings, seeking dismissal of the petition. (See Dkt. No. 12.) For the reasons that follow,
Zurich’s petition to compel arbitration is granted, and Crowley’s corresponding motion for
judgment on the pleadings to dismiss the petition is denied.
Adidas, on or about October 15, 2011, consigned 574 boxes of clothing to Crowley for
transport from Honduras to Indiana, via the port of Gulfport, Mississippi. (Dkt. No. 1 ¶ 7.)
Adidas was insured by Zurich to cover loss or damage to the clothing. (Id. ¶ 13.) Crowley, in
turn, engaged CW Enterprises, Inc. (“CW”), a Mississippi trucking firm, to take the goods by
land from Gulfport to Indiana. (Dkt. No. 10 ¶ 9.) Gramercy Insurance Company (“Gramercy”)
insured CW for the cargo, and Crowley was named as an additional insured on the policy. (Dkt.
No. 10-1 at 2; Dkt. No. 10 ¶ 25.) A second insurance company, Beacon Insurance Company,
Ltd. (“Beacon”), also contracted to cover Crowley’s liabilities. (Dkt. No. 15-3.)
While in transit from Gulfport to Indiana, Adidas’s clothing aboard CW’s truck was
damaged by fire. (Dkt. No. 1 ¶ 10.) As Adidas’s insurer, Zurich paid for the loss. (Dkt. No. 1
¶ 14.) Now, as equitable subrogee, Zurich seeks to recover that amount from Crowley because
of Crowley’s alleged negligence in causing the damage. (Id. ¶¶ 12.)
The International and U.S. Domestic Ocean Liner and Logistics Volume Transportation
Agreement (“Service Agreement”) between Adidas and Crowley covering the transportation at
issue here contains a clause requiring the parties to submit any dispute arising from the contract
to arbitration in New York City. (Dkt. No. 5-1 § 13.) While the Service Agreement permits
Crowley to subcontract its duties, it makes clear that Crowley remains “fully liable for the due
performance of its obligations under this contract.” (Id. § 9.) The Service Agreement also
provides that the Carriage of Goods by Sea Act of the United States of America, 46 U.S.C. app.
§ 1301, et seq. (“U.S. COGSA”), applies to claims of cargo loss. (Dkt. No. 5-1 § 10.2.) The
contract further specifies that it shall be governed and construed in accordance with general
maritime law of the United States, the FAA, the Shipping Act of 1984 as amended, 46 U.S.C.
app. § 1701 et seq., and, to the extent such laws are inapplicable, the laws of the State of New
York. (Id. § 13.) Finally, the Service Agreement limits claims by third-party beneficiaries:
“Except as specifically provided for elsewhere in this Contract, this Contract shall not be
construed to confer any benefit on any third party not a party to it nor shall the Contract provide
any rights to such third party to enforce its provisions.” (Id. § 12.4.)
Zurich initially sought recovery from Crowley in a 2012 lawsuit, which the parties
voluntarily dismissed without prejudice. See Zurich Ins. Corp. a/s/o Adidas Grp. v. Crowley
Latin Am. Servs., LLC, No. 12 Civ. 6674 (S.D.N.Y. Nov. 15, 2012). (Zurich represents that the
2012 suit was withdrawn when the parties agreed that the matter was subject to mandatory
arbitration. (Dkt. No. 15 at 2.)) Crowley has since declined to submit to arbitration. (Dkt. No. 1
In August 2013, Gramercy (CW and Crowley’s insurer) was deemed insolvent and
ordered into liquidation. (Dkt. No. 10-2 at 2.) As a consequence, as provided by Mississippi
law, the Mississippi Insurance Guaranty Association assumed Gramercy’s liabilities. (Dkt. No.
10 ¶ 25.)
Zurich, as subrogee of Adidas, petitions this Court to compel arbitration with Crowley on
the basis of the arbitration clause in the Service Agreement between Crowley and Adidas. (Dkt.
No. 1 ¶¶ 16-23.) Crowley moves for judgment on the pleadings, seeking dismissal of the
petition, pursuant to Federal Rule of Civil Procedure 12(c). (See Dkt. No. 12.)
Federal Rule of Civil Procedure 12(c) provides that “a party is entitled to judgment on the
pleadings ‘only if it has established that no material issue of fact remains to be resolved and that
[it] is entitled to judgment as a matter of law.’” Bailey v. Pataki, No. 08 Civ. 8563, 2010 WL
234995, at *1 (S.D.N.Y. Jan. 19, 2010) (alteration in original) (quoting Juster Assocs. v. Rutland,
901 F.2d 266, 269 (2d Cir. 1990)). “The standard for granting a Rule 12(c) motion for judgment
on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim,” and, as
in a 12(b)(6) motion, the Court takes the facts alleged in the complaint as true. Patel v.
Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). In a Rule 12(c)
motion, the Court may consider “the complaint, the answer, [and] any written documents
attached to them.” Dean v. Town of Hempstead, 163 F. Supp. 3d 59, 64–65 (E.D.N.Y. 2016)
(quoting L–7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)).
Crowley’s Rule 12(c) motion seeks to dispose of Zurich’s petition to compel arbitration.
“The FAA ‘requires courts to enforce privately negotiated agreements to arbitrate . . . in
accordance with their terms.’” Nat’l Union Fire Ins. Co. of Pittsburg v. Beelman Truck Co., No.
15 Civ. 8799, 2016 WL 4524510, at *2 (S.D.N.Y. Aug. 24, 2016) (alteration in original)
(quoting Volt Info. Scis., Inc. v. Bd. of Tr. of Leland Stanford Junior Univ., 489 U.S. 468, 478
(1989)). The reviewing court’s evaluation is limited to: “i) whether a valid agreement or
obligation to arbitrate exists, and ii) whether one party to the agreement has failed, neglected or
refused to arbitrate.” LAIF X SPRL v. Axtel, S.A. de C.V., 390 F.3d 194, 198 (2d Cir. 2004).
Where these requirements are met, the court must issue “an order directing the parties to proceed
to arbitration in accordance with the terms of the agreement.” 9 U.S.C. § 4.
The parties agree that the Service Agreement is a valid agreement to arbitrate, requiring
that all disputes “arising out of or . . . connect[ed]” to the operative contract be submitted to
arbitration in New York City. (Dkt. No. 1 ¶ 16; Dkt. No. 10 ¶ 16; Dkt. No. 5-1 § 13.) Thus,
absent any applicable defenses, the parties’ dispute must be submitted to arbitration, as it arises
out of the contract.
Crowley seeks judgment on the pleadings based on several defenses to arbitration: state
insurance law; the doctrine of laches; and a contract provision that purports to bar third-party
recovery. The Court addresses each argument in turn.
State Insurance Law
Crowley—which was insured, in part, by Gramercy, an insolvent insurer—contends that
enforcement of the instant arbitration clause under the FAA is barred by state insurance law that
prohibits subrogated claims against the insured of an insolvent insurer. (Dkt. No. 10 ¶ 25.)
Some state law remains operative, and is not preempted by the FAA, under the
McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq. As relevant here, the McCarran-Ferguson Act
precludes application of the FAA to contracts regulating insurance where such application would
be contrary to state law. See Stephens v. Am. Int’l Ins. Co., 66 F.3d 41, 42 (2d Cir. 1995)
(holding that state laws governing insurance company liquidation are preserved from preemption
by the FAA). The parties assume that Mississippi law applies, 1 and the Court thus evaluates
whether the operative state law, the Mississippi Insurance Guaranty Association Law, Miss.
Code Ann. § 83-23-101 et seq. (the “MIGA Act”), bars the FAA’s application to the instant suit.
The MIGA Act creates a guaranty association that steps in to perform obligations of
insolvent insurers, id. § 83-23-111, to protect against “financial loss to claimants or
policyholders because of the insolvency of an insurer,” id. § 83-23-103. The statute also
allocates losses from insolvency to various parties and specifically “preclude[s] recovery . . .
from the insured of any insolvent carrier to the extent of the policy limits.” Id. § 83-23-109(f).
Crowley argues that the MIGA Act establishes an absolute bar to subrogation against the
insured where any of its insurers has become insolvent. (See Dkt. No. 13 at 3.) But the statute’s
terms prevent recovery only where there is a single, insolvent insurer and does not purport to bar
Gramercy provided insurance to policyholders in a number of states, including, as
relevant here, Mississippi. The Court notes that the outcome of this case would be the same
under other potentially applicable state statutes, like Florida’s (the Florida Insurance Guaranty
Association Act, Fla. Stat. Ann. § 631.50 et seq.), and it therefore does not engage in choice-oflaw analysis as to which applies.
recovery where there are other, solvent insurers. 2 In fact, the MIGA Act requires exhaustion of
rights under policies with solvent insurers. See Miss. Code Ann. § 83-23-123 (“Any person
having a claim against an insurer under any provision in an insurance policy other than a policy
of an insolvent insurer, which is a covered claim, shall be required to exhaust first his right under
Here, Crowley had insurance policies from more than one insurer. While one of those
insurers, Gramercy, is insolvent, at least one other, Beacon, is still solvent. As a result, a claim
against Crowley does not necessarily implicate the state insurance guaranty association. See,
e.g., Ross v. Can. Indem. Ins. Co. 142 Cal. App. 3d 396, 404 (Cal. Ct. App. 1983) (finding that
the California Insurance Guaranty Association is not implicated “when a secondary insurer is
available in the event of an insolvent primary insurer, [because] the secondary insurer should be
responsible”); Kapp v. Home Depot, Inc., No. CV030825419, 2004 WL 574640, at *2 (Conn.
Super. Ct. Mar. 8, 2004) (implying that the action could continue under the Connecticut
Insurance Guaranty Association Act if there were additional, solvent insurers). The MIGA Act,
accordingly, does not bar recovery.
Because the operative state law does not preclude recovery, the application of the FAA
does not contravene state law, per the McCarran-Ferguson Act’s imperative. 3 The Court thus
can enforce this arbitration clause under the FAA.
The cases cited by Crowley similarly speak only to the situation where there is a
single, insolvent insurer. See, e.g., Cordani v. Roulis, 395 So.2d 1276, 1277 (Fla. App. 1981).
Crowley’s argument that Beacon would cover only a fraction of Zurich’s claim
(due to a $75,000 deductible) (Dkt. No. 16 at 1), does not change the result. A potential
limitation upon a solvent insurer’s coverage does not bar recovery per se but may implicate the
amount of recovery. See Miss. Code Ann. § 83-23-123 (“Any amount payable on a covered
claim . . . shall be reduced by the amount of any recovery under such [solvent] insurance
Doctrine of Laches
Crowley argues that the relief sought by Zurich is barred by the doctrine of laches
because Crowley has been prejudiced by the delay in prosecuting this claim and the intervening
insolvency of Gramercy. (Dkt. No. 10 ¶ 27.) Under the FAA, whether laches doctrine serves as
a defense against enforcement of an arbitration agreement is, by default, an issue for the
arbitrator to decide. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85 (2002).
Here, there is nothing in the Service Agreement or any other of Crowley’s submissions that
would displace this presumption. Accordingly, the Court leaves for the arbitrator the question of
whether a laches defense is appropriate.
Last, Crowley argues that recovery is prohibited by § 12.4 of the Service Agreement
between Adidas and Crowley, which purports to bar third parties from enforcing the contract’s
provisions. (Dkt. 10 ¶ 28.) Specifically, the Service Agreement states: “[T]his Contract shall not
be construed to confer any benefit on any third party not a party to it nor shall the Contract
provide any rights to such third party to enforce its provisions.” (Dkt. No. 5-1 § 12.4.) But such
a limitation of third-party enforcement of legal rights arising under the contract does not reach
Zurich’s right of equitable subrogation. Zurich’s equitable subrogation right does not arise from
the contract’s language or provisions, but instead allows Zurich to stand in Adidas’s shoes to
enforce the contract as a party to it. See Farrell Lines, Inc. v. Columbus Cello-Poly Corp., 32 F.
Supp. 2d 118, 126 (S.D.N.Y. 1997), aff’d sub nom., Farrell Lines, Inc. v. Ceres Terminals, Inc.,
161 F.3d 115 (2d Cir. 1998). For this reason, § 12.4 of the Service Agreement does not bar
For the foregoing reasons, Zurich’s petition to compel arbitration is GRANTED.
Crowley’s motion for a judgment on the pleadings is DENIED.
The parties shall proceed to arbitration in accordance with the terms of the arbitration
clause in the Service Agreement.
The Clerk is directed to close the motion at Docket Number 12 and to close the case.
Dated: December 20, 2016
New York, New York
J. PAUL OETKEN
United States District Judge
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