Bradshaw Construction Corp. v. Underwriters at Lloyd's, London
Bradshaw Construction Corp. v. Underwriters at Lloyd's, London
Opinion of the Court
ORDER
THIS CAUSE came before the Court on Defendants, Underwriters at Lloyd’s, London’s (“Defendants!’]”)
Plaintiff is a Maryland corporation “engaged in the business of microtunneling,” which involves, among other things, installing “reinforced concrete pipe.” (Compl. [ECF No. 1] ¶¶ 4, 12). On February 25, 2010, Plaintiff entered into a subcontract with Dragados USA, Inc., under which Plaintiff agreed to perform microtunnel work for a roadway improvements project in Broward County (the “Project”). {See id. ¶ 12). Defendants — a consortium of foreign insurers — issued an insurance policy (the “Policy”)
8. ARBITRATION
If any differences shall arise as to the amount to be paid under this Policy (liability being otherwise admitted) such differences shall be referred to an Arbitrator to be appointed by the parties in accordance with the statutory provisions in that behalf for the time being in force. Where any difference is by this Condition to be referred to arbitration the making of an award shall be a condition precedent to any right of action against the Insurers.
(Compl., Ex. A [ECF No. 1-3] at 32). Plaintiff opposes the Motion, arguing Defendants have not established the Provision is part of the Policy and, assuming the Provision is applicable, it is an appraisal provision, not an arbitration provision. (See generally Resp.).
“The FAA embodies a liberal federal policy favoring arbitration agreements.” Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351, 1366 (11th Cir. 2008) (internal quotation marks and citations omitted).
Defendants argue the existence of a valid and enforceable arbitration agreement — the Provision — requires the Court to dismiss this case for lack of subject-matter jurisdiction or, in the alternative, stay the case pending .the result of arbitration proceedings. (See Mot. 1-2). According to Defendants, Plaintiffs claim for indemnity under the Policy falls within the scope of the Provision, which permits judi
“A party cannot place the making of the arbitration agreement in issue simply by opining that no agreement exists. Rather, that party must substantiate the denial of the contract with enough evidence to make the denial colorable.” Chastain v. Robinson-Humphrey Co., 957 F.2d 851, 855 (11th Cir. 1992) (citations omitted). Plaintiff places the existence of the purported arbitration agreement into dispute, arguing it remains unclear what insurance policy governs the dispute, as Defendants have failed to identify the applicable policy despite Plaintiffs repeated requests. {See Resp. 4; Compl. ¶ 6 & n. 1). According to Plaintiff, it was issued an insurance policy bearing policy number B0901 LB0912448 000 (the “448 Policy”), but Defendants’ loss adjuster, Crawford & Company (“Crawford”), later sent Plaintiff a document bearing policy number B0901 LB0912694 000 (the “694 Policy”), which, according to Crawford, “is the policy under which ‘we completed the order.’ ” {Id. ¶ 26; see also id. ¶ 6 & n. 1). Plaintiff made follow-up requests but each time received only incomplete copies of policies. {See id. ¶¶ 16, 24-26, 29). Plaintiff contends the policy governing this dispute could be the 448 Policy, the 694 Policy, both of these policies, or neither of them. {See Resp. 4).
Defendants provide a partial explanation for this discrepancy and suggest the 694 Policy now controls. According to Defendants, “[t]he broker (JLT) originally tried to place the project ... under [the 448 Policy],” but due to complications, “the broker had to complete the order with ... [the 694 Policy].” (Reply 9 (alterations added)). Defendants further argue any discrepancy is irrelevant because the 448 Policy and the 694 Policy, including their arbitration provisions, “mirror each other.” {Id. 9-10). But the parties have pointed to, and the Court has been able to find, only one arbitration agreement in the record: the Provision, which bears the policy number of the 448 Policy. {See Compl., Ex. A [ECF No. 1-3] at 32). Defendants do not explain why they have not submitted the arbitration provision of the 694 Policy,
The Court cannot grant Defendants’ Motion “until it is satisfied that a valid arbitration agreement exists,” Miller, 791 F.2d at 854 (citing 9 U.S.C. § 4), and Plaintiff has submitted enough evidence to make its denial of the purported arbitration agreement colorable, see Chastain, 957 F.2d at 855. Accordingly, it is
ORDERED AND ADJUDGED that Defendants’ Motion [ECF No. 8] is DENIED without prejudice. The parties are to submit a revised scheduling report by March 31, 2015, addressing proposed deadlines for a summary trial on the issue of whether the parties entered into an agreement to arbitrate. The proposed deadlines shall include discovery deadlines
. According to Defendants, they are incorrectly sued as "Underwriters at Lloyd's, London.’’ (See Mot. 1). Defendants are properly identified as "an alleged consortium of insurers comprised of the following": (1) HDI-Gerling Industrial Insurance Company UK Branch; (2) Starr Managing Agents Limited (SMAL); (3) Torus Insurance (UK) Limited; (4) Federal Insurance Company; (5) Infrassure Limited; (6) ACE European Group Limited; (7) Mapfre Global Risks, Compañía Internacional De Seguros Y Reaseguros; and (8) Hardy (Underwriting Agencies). (Corporate Disclosure Statements [ECF Nos. 13-20]).
. As explained infra, the parties dispute which policy numbers are assigned to the Policy and which documents in the record are part of the Policy. The parties do, however, agree that a policy — the Policy — was issued.
. The FAA governs contracts involving interstate commerce, see 9 U.S.C. §§ 1-2, and thus a federal court sitting in diversity adjudicating a contract dispute involving interstate commerce applies the FAA to the contract's arbitration provision. See Kong v. Allied Prof'l Ins. Co., 750 F.3d 1295, 1303 (11th Cir. 2014) (citation omitted). Given the Defendants are foreign insurers (see Compl. ¶ 5), and Plaintiff does not dispute the Policy involves interstate commerce, the Court applies the FAA, and not the Florida Arbitration Code, to adjudicate the Motion. See Sims v. Clarendon Nat’l Ins. Co., 336 F.Supp.2d 1311, 1316-17 (S.D.Fla. 2004).
. Parts of the 694 Policy are in the record, but those parts do not contain an arbitration provision. {See Compl. Ex. B [ECF No. 1-4]). The Court notes, however, that one page, which appears to be a table of contents for the 694 Policy, states an arbitration provision is in the policy. {See id. 8).
Reference
- Full Case Name
- BRADSHAW CONSTRUCTION CORPORATION v. UNDERWRITERS AT LLOYD'S, LONDON
- Status
- Published