Allied World Surplus Lines Insurance Company et al v. Blue Cross and Blue Shield of South Carolina
ORDER AND OPINION finding this action is not ripe for judicial review because contractual ADR provisions that are conditions precedent to litigation have not been satisfied but might be satisfied in the future. The Court GRANTS 20 Defendant's Motion to Dismiss. The complaint is DISMISSED WITHOUT PREJUDICE. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 8/3/2017.(sshe, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Allied World Surplus Lines Insurance
Company,form erly known as Darwin
Select Insurance Company and Allied
World Specialty Insurance Company,
formerly known as Darwin National
Blue Cross and Blue Shield of South
Civil Action No. 3:17-903-RMG
ORDER AND OPINION
This matter is before the Court on Defendant Blue Cross and Blue Shield of South
Carolina' s ("BCBS") motion to stay or dismiss this insurance coverage action. (Dkt. No. 20.) For
the reasons set forth below, the Court grants the motion and dismisses this action without prejudice.
Allied World seeks a declaratory judgment under the Federal Declaratory Judgment Act of
its obligations under policies of errors and omissions liability insurance and directors and officers
liability insurance sold to BCBS for underlying civil actions against BCBS, the Blue Cross Blue
Shield Association, and other Blue Plans. (Dkt. No. 1
8-9.) The underlying actions were
grouped into two tracks, the Provider Track and the Subscriber Track, and transferred to the United
States District Court for the Northern District of Alabama for coordinated pretrial proceedings.
The insurance policies have an Alternative Dispute Resolution ("ADR") provision,
requiring the parties to arbitrate or to mediate "all disputes which may arise under or in connection
with this Policy," and allowing the parties to choose between arbitration and mediation. (Dkt. No.
5-4 at 23-24 (ADR requirement in errors and omissions policy); Dkt. No. 5-5 at 11-12 (ADR
requirement in directors and officers policy).) Where mediation occurs, the ADR requirement
provides that no judicial proceeding shall be commenced until at least 120 days has elapsed since
the termination of mediation. The parties have engaged in mediation before retired Judge Layn R.
Phillips, but the parties dispute whether that mediation has satisfied the ADR provision. BCBS
moves to stay or to dismiss this action, arguing Allied World has not satisfied the ADR
A motion to dismiss for lack of subject-matter jurisdiction filed under Rule 12(b)(l) of the
Federal Rules of Civil Procedure challenges the jurisdiction of a court to adjudicate the matter
before it. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). A challenge to subject-matter
jurisdiction may contend either 1) that the complaint fails to allege facts sufficient to establish
subject matter jurisdiction or 2) "that the jurisdictional allegations of the complaint [are] not true."
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where the sufficiency of the jurisdictional
allegations in the complaint is challenged facially, "the facts alleged in the complaint are taken as
true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject
matter jurisdiction." Kerns v. United States, 585 F.3d 187, 192 (2009). If, however the defendant
contends "that the jurisdictional allegations of the complaint [are] not true," the plaintiff bears the
burden to prove facts establishing jurisdiction and the district court may "decide disputed issues
of fact." Id. In that case, because the plaintiffs allegations are not presumed true, "the court
should resolve the relevant factual disputes only after appropriate discovery." 24th Senatorial
Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 629 (4th Cir. 2016).
And where "the
jurisdictional facts and the facts central to a tort claim are inextricably intertwined," so that a
challenge to the truth of the jurisdictional facts indirectly challenges the plaintiffs claims on the
merits, "the trial court should ordinarily assume jurisdiction and proceed to the intertwined merits
issues." Kerns, 585 F.3 at 193.
As a threshold issue, the Court must determine whether BCBS's motion to dismiss because
of non-compliance with the ADR provisions should be considered under Rule 12(b)(l) of the
Federal Rules of Civil Procedure. BCBS argues dismissal under Rule 12(b)(l) is appropriate
because the underlying claims are not ripe for consideration until, inter alia, the mediation
requirement is satisfied. "The doctrine of ripeness prevents judicial consideration of issues until a
controversy is presented in clean-cut and concrete form. " Miller v. Brown, 462 F.3d 312, 318-19
(4th Cir. 2006) (internal quotation marks omitted). To determine if a case is ripe, courts "balance
the fitness of the issues for judicial decision with the hardship to the parties of withholding court
consideration." Id. at 319 (internal quotation marks omitted). "[I]t is settled that a case is fit for
judicial decision when the issues are purely legal and when the action in controversy is final and
not dependent on future uncertainties." Lansdowne on the Potomac Homeowners Ass 'n, Inc. v.
OpenBand at Lansdowne, LLC, 713 F.3d 187, 198 (4th Cir. 2013) (internal quotation marks
Where mediation is a condition precedent to litigation, and where that mediation has not
yet been completed but may be completed in the future, the underlying action in controversy is
dependent upon future uncertainties: whether the required mediation will occur and, if so, whether
(or to what extent) the mediation will resolve the underlying claims. Moreover, withholding
judicial review until completion of mediation that is condition precedent to litigation imposes no
hardship on the parties. The Court therefore concludes that where a mediation condition precedent
to litigation has not yet been satisfied but may be satisfied in the future, the merits of the underlying
claim are not ripe for judicial review. 1 If a dispute is not ripe for judicial review, then dismissal is
appropriate under Rule 12(b)(l). Sansotta v. Town of Nags Head, 724 F.3d 533 , 548 (4th Cir.
2013) ("' [R]ipeness is a question of subject matter jurisdiction."' (quoting Reahard v. Lee County,
978 F.2d 1212, 1213 (11th Cir. 1992)). 2
The Court therefore proceeds to determine whether the ADR requirement has been
satisfied. Coverage issues have been mediated before Judge Phillips, but BCBS argues that
mediation fails to satisfy the ADR requirement because the AAA did not administer the mediation
and because the mediation has not terminated. (Dkt. No. 20 at 4-6.)
The Court previously ruled that Allied World and BCBS waived strict compliance with the
requirement that the AAA administer the mediation when they voluntarily mediated the dispute
before Judge Phillips. (Dkt. No. 24 at 2.) The Court also ruled that whether mediation has
concluded by application of the relevant AAA rules, because the parties agreed to those rules in
the contract. (Id. at 3.) AAA rules provide that mediation terminates (1) by execution of a
settlement agreement, (2) by a written or verbal declaration from the mediator that further efforts
would not be helpful, (3) by a written or verbal declaration of all parties that mediation has
terminated, or (4) "[w]hen there has been no communication between the mediator and any party
or party' s representative for 21 days following the conclusion of the mediation conference."
This Court declines to adopt the reasoning of some courts in this Circuit that a Rule 12(b)(1)
challenge based upon failure to comply with a contractual mediation requirement "conflate[s] the
concepts of subject matter jurisdiction and 'condition precedent' to litigation, "' and that a motion
to dismiss is properly considered under Rule 12(b)(6), not Rule 12(b)(l). E. g., Kane Builders S &
D, Inc. v. Md. CVS Pharmacy, LLC, No. CIV.A. DKC 12-3775, 2013 WL 2948381 , at *2 (D. Md.
June 13 , 2013).
Because ripeness is a question of subject matter jurisdiction, an action that is not ripe for judicial
review must be dismissed. The Court cannot stay or abstain from hearing an action that is not ripe.
Sansotta, 724 F.3d at 548. For that reason, the Court only considers whether this action should be
dismissed for lack of subject matter jurisdiction. It does not consider BCBS ' s alternative
arguments that the Court should stay or abstain from hearing this action.
Mediation Procedures of the American Arbitration Association, M-13 ("Termination of
The Court therefore ordered supplemental briefing on the following
(1) Did the mediator, Judge Phillips, ever declare that further mediation would not
contribute to a resolution of the dispute, and, if so, when?
(2) Did Judge Phillips communicate with any party in the 21-day period following the last
relevant mediation session?
(Id. at 4); see also Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (when considering
dismissal under Rule 12(b)( 1), the Court does not assume the jurisdictional allegations are true but
may look to evidence beyond the pleadings).
The parties have now answered those questions. (Dkt. Nos. 25 & 26.) All parties agree
that Judge Phillips never declared that further mediation would not contribute to a resolution of
the dispute. (Dkt. No. 25 at 1; Dkt. No. 26 at 4.) The parties dispute whether Judge Phillips
communicated with any party in the 21-day period following the last mediation session. (Dkt. No.
25 at 1; Dkt. No. 26 at 4-5.) Allied World provides a declaration from counsel stating, "Neither
Judge Phillips, nor anyone from his team, has communicated with Allied World regarding the
coverage dispute with BCBS-SC since the September [12-13 ,] 2016 coverage mediation session."
(Dkt. No. 25-1
11.) BCBS argues the last relevant mediation session occurred on June 6 and 8,
2017, and that communications were sent from Judge Phillips' s staff to Allied World's coverage
counsel within 21 days of that mediation. BCBS further argues that even if the September 12-13,
2016 mediation session is deemed the last session relevant to the coverage issue in this case, there
has been a steady stream of communications from Judge Phillips' s office to the parties since
September 13, 2016. (Dkt. No. 26-1
16 (listing communications from September 15, 2016 to
July 19, 2017).)
That Judge Phillips has never stated that mediation has concluded or that further mediation
would not contribute to resolution of the dispute before this Court strongly suggests this Court
should resolve any ambiguity regarding his communications with the parties in favor of finding
mediation has not ended. Further, the relevant AAA rule states that mediation is terminated where
"there has been no communication between the mediator and any party or party's representative."
The rule does not provide that there must be communications between the mediator and all parties.
Nor does the rule provide that communications between the mediator and party must substantively
"regard" the precise issues mediated in a particular mediation session.
Clearly, there were
communications from Judge Phillips (or staff acting on his behalf) to BCBS within 21 days of the
September 2016 mediation (Dkt. No. 26-1
if 16), and it appears there were communications from
him or his staff to Allied World within that period (Dkt. No. 26 at 5). That is sufficient to find
mediation was not terminated because of a failure to communicate "for 21 days following the
conclusion of the mediation conference."
Allied World argues that certain mediation sessions and certain communications from
Judge Phillips following mediation sessions are not relevant to this action because the underlying
dispute is bifurcated between "subscriber track" cases and "provider track" cases, and only the
"provider track" mediation is relevant to the present case. (Dkt. No. 25-1.) But this Court will not
inquire into the substance of the mediation sessions. Absent a contrary statement from the
mediator, the fact that on June 6 and 8, 2017, Judge Phillips mediated a coverage dispute regarding
In Re: Blue Cross and Blue Shield Antitrust Litigation with counsel for Allied World and BCBS
in attendance is sufficient to find that mediation of the coverage dispute at issue in this case was
ongoing through June 2017. That mediation continued at least to a time two months later than the
filing of this action demonstrates that mediation had not terminated 120 days before the filing of
The Court finds that this action is not ripe for judicial review because contractual ADR
provisions that are conditions precedent to litigation have not been satisfied but might be satisfied
in the future. The Court therefore GRANTS Defendant's motion to dismiss (Dkt. No. 20). The
complaint is DISMISSED WITHOUT PREJUDICE.
AND IT IS SO ORDERED.
istrict Court Judge
August ~' 2017
Charleston, South Carolina
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