Nancy G. Atkins, Liquidator of Ky. Health Coop., Inc. v. Cgi Techs. & Solutions, Inc.
Nancy G. Atkins, Liquidator of Ky. Health Coop., Inc. v. Cgi Techs. & Solutions, Inc.
Opinion of the Court
This Court has an obligation to exercise jurisdiction granted to it by Congress. Having determined that such jurisdiction exists, and, having determined that Kentucky law does not reverse preempt the *624Federal Arbitration Act, the Liquidator asks this Court to abstain from exercising jurisdiction. However, no "exceptional circumstances" exist in this case where such abstention would be appropriate. For the foregoing reasons, CGI's Motion to Compel Arbitration is GRANTED and the Liquidator's Motion to Dismiss is DENIED.
I
The Kentucky Health Cooperative (KYHC) sought approval from the Center for Medicare and Medicaid Services (CMS) to offer health plans to Kentucky citizens in 2011 and 2012. Shortly thereafter, KYHC contracted with CGI Technologies and Solutions, Inc., whereby CGI would provide administrative services as an independent contractor for KYHC. [R. 71-1.] This Administrative Services Agreement included a section where parties agreed to arbitrate claims and disputes arising under or relating to the Agreement. [R. 9-2 at 27-28.]
Similarly, KYHC contracted with Milliman, Inc., for Milliman to perform actuary and consulting services to KYHC [Milliman, Inc., v. Roof , 3:18-cv-000012-GFVT, R. 1-2], and around the same time, KYHC contracted with Beam Partners, LLC, for Beam to provide management and support services to KYHC [Beam Partners, LLC v. Atkins , 3:17-cv-00004-GFVT; R. 4-2].
KYHC issued its initial health plan policy on January 1, 2014, but by late 2015, KYHC was insolvent and placed into rehabilitation by Franklin Circuit Court in Franklin County, Kentucky. [R. 9-1 at 3.] Pursuant to KRS § 304.33-010 et seq. , Franklin Circuit Court placed KYHC into liquidation on January 15, 2016, and appointed H. Brian Maynard, Commissioner of the Kentucky Department of Insurance, as the Liquidator. Id. Jeff Gaither and David Hurt were appointed as Special Deputy Liquidators. Pursuant to the Liquidation Order,
The Liquidator and the Special Deputy Liquidators are hereby authorized to deal with the property, business, and affairs of KYHC and KYHC's estate, and in any necessary forum, to sue or defend for KYHC, or for the benefit of KYHC's policyholders, creditors, or shareholders in the courts and tribunal, agencies or arbitration panels of this states and other states, or in any applicable federal court in the Liquidator's name as Commissioner of the Kentucky Department of Insurance, in his capacity as Liquidator, or a Special deputy in his capacity as Special Deputy Liquidator, or in the name of KYHC.
[R. 34-6 at 9.] Since that time, Nancy G. Atkins has replaced H. Brian Maynard as Commissioner of the Kentucky Department of Insurance, and thus also as the Liquidator. See KRS § 304.33-200. Donald Roof was also appointed as a Deputy Litigator for KYHC on August 14, 2017. [Milliman, Inc., v. Roof , 3:18-cv-00012-GFVT, R. 1 at 2.]
On May 13, 2016, the Liquidator sued CGI in Franklin Circuit Court for breach of contract and negligence. [R. 71-1 at 2.] The Liquidator refused to honor the arbitration clause, so CGI removed that claim to this Court and filed a Petition to Compel Arbitration. Id. These actions were consolidated here. [R. 8.] Six months later, the Liquidator sued Beam Partners and Terry Shilling, along with Janie Miller,
In this case, the Liquidator sought remand to Franklin Circuit Court. KYHC is a Kentucky non-profit corporation with a principal place of business in Kentucky, while CGI is a business incorporated in Delaware with a principal place of business in Virginia. [R. 1 at 1.] The amount in controversy exceeds $75,000. Id. Accordingly, under a traditional analysis of diversity jurisdiction, this Court has requisite authority and subject-matter jurisdiction.
Meanwhile, in Gaither v. Beam , the Liquidator sought remand for the contract and tort action. In Gaither , however, there was not complete diversity, as both plaintiffs and several defendants were residents of Kentucky. [Jeff Gaither, Deputy Liquidator of Kentucky Health Cooperative, Inc. v. Beam Partners, LLC, et al. , 3:16-cv-00094-GFVT, R. 44 at 6.] Ultimately, this Court declined to sever the claims against the nondiverse parties and remanded for lack of jurisdiction.
After these developments, this Court denied CGI's Motion to Compel Arbitration without prejudice and directed the parties to re-brief the issue based on the significantly altered procedural posture, as Gaither v. Beam had now been remanded but Atkins v. CGI Techs. & Sols., Inc. , had not. [R. 63.] Instead, CGI appealed the Court's Order to the Sixth Circuit Court of Appeals. [R. 67.]
On February 9, 2018, the Sixth Circuit vacated this Court's Order denying CGI's Motion to Compel Arbitration and remanded for further proceedings. Atkins v. CGI Techs. & Sols., Inc. ,
While removing the issue of reverse preemption from this case, the Sixth Circuit did not resolve the other pending issues, nor did the Sixth Circuit resolve the issue of reverse preemption in Beam v. Atkins or in Milliman v. Roof. The parties appeared before this Court on July 23, 2018, for oral argument. [R. 87.]
II
A
As an initial matter, the Liquidator challenges this Court's ability to *626hear this action by claiming the prior exclusive jurisdiction doctrine bars jurisdiction. [R. 73 at 7.] The doctrine of prior exclusive jurisdiction states, "If two suits are in rem or quasi in rem, so that the court must have possession or some control over the property in order to grant the relief sought, the jurisdiction of one court must yield to that of the other." Cartwright v. Garner ,
In rem jurisdiction involves or determines "the status of a thing, and therefore the rights of persons generally with respect to that thing." Black's Law Dictionary (10th ed. 2014). Conversely, in personam jurisdiction involves or determines "the personal rights and obligations of the parties" and is "brought against a person rather than a property." Black's Law Dictionary (10th ed. 2014). "A normal action brought by one person against another for breach of contract is a common example of an action in personam. " R.H. Graveson, Conflict of Laws, 98 (7th ed. 1974).
If the Liquidator is successful in its tort claims against CGI, the Liquidator will likely be able to collect monetary damages from CGI, thus increasing the amount of assets that can be distributed among its creditors. However, the Liquidator has not provided sufficient case law to convince the Court that this results in an in rem action governed by the prior exclusive jurisdiction doctrine. The cases cited by the Liquidator involve creditors suing the insolvent company, whereas in the tort action here, the insolvent company is the plaintiff. See Gillis v. Keystone Mut. Cas. Co. ,
The Court is not convinced. This is a petition to compel arbitration for a tort claim involving a breach of contract. A favorable result in this matter does not affect the distribution of the liquidated assets held in Franklin Circuit Court. Nor does the Court need to have jurisdiction over the assets to resolve this matter. Thus, the Court finds that the doctrine of prior exclusive jurisdiction does not apply here.
B
The Liquidator also challenges the Court's power to hear this matter, claiming that CGI has not complied with Kentucky's requirements for pursuing arbitration, and this Court cannot grant or deny relief without CGI fully complying with Kentucky's arbitration requirements. [R. 73 at 13.] Under the IRLL, no party may institute an action against the liquidator without approval of the court. KRS § 304.33-270(1). However, the Federal Arbitration Act does not require parties to comply with state requirements before seeking a petition from federal court for arbitration. See
C
1
The Federal Arbitration Act (FAA),
Under the FAA, when contracts contain arbitration clauses, federal courts "are to examine the language of the contract in light of the strong federal policy in favor of arbitration," and are required to resolve any ambiguities in the agreement or doubts as to the parties' intentions in favor of arbitration. Stout v. J.D. Byrider ,
Before compelling an unwilling party to settle a dispute by arbitration, the Court must apply a two-part test "to determine whether the dispute is arbitrable; meaning that a valid agreement to arbitrate exists between the parties, and that the specific dispute falls within the substantive scope of that agreement." Javitch ,
Finally, in evaluating motions to compel arbitration, "Courts treat the facts as they would in ruling on a summary judgment." Diversicare Leasing Corp. v. Hutchinson , Civil Action No. 17-42-HRW,
The arbitration clause in question is located at Article 7 of the Agreement. [R. 9-2 at 27.] Specifically, it states:
If any controversy, dispute, or claim ("Dispute") between the Parties arises out of or relates to this Agreement, which the Parties cannot settle by good faith negotiation between them during the time frames set forth herein, the Parties agree that the Dispute shall be resolved by mediation or arbitration. Financial issues that cannot be resolved between the Parties within thirty (30) Days of the identification of the issue by either Party shall proceed directly to arbitration.
2
According to the Liquidator, the parties agreed the contract would be governed and construed according to Kentucky state law, and therefore, the agreement is covered by Kentucky law and Kentucky Insurance requirements. [R. 9-2 at 25.] Under Kentucky law, the Liquidator argues, post-liquidation arbitration is barred by the IRLL. [R. 73 at 31-32.] The Court is not persuaded. The Liquidator does not point to, and the Court cannot find, a provision in the IRLL expressly banning arbitration proceedings. The Court does not question that the parties expected and intended for Kentucky and the IRLL to govern the Agreement. [R. 73 at 32.] However, nothing in the agreement or in the IRLL prohibits Franklin Circuit Court from ordering arbitration of claims once a company begins liquidation proceedings.
*629Furthermore, even if the IRLL did prohibit arbitration post-liquidation, the choice-of law provision does not incorporate a state's restrictions on arbitration clauses. "Thus, the choice-of-law provision covers the rights and duties of the parties, while the arbitration clause covers arbitration; neither sentence intrudes upon the other." Mastrobuono v. Shearson Lehman Hutton, Inc. ,
3
The next question is whether this dispute falls within the substantive scope of the Agreement. Javitch v. First Union Sec., Inc. ,
The underlying dispute includes claims by the Liquidator that CGI breached the Agreement, a dispute that clearly relates to the Agreement. Further, no language in the Agreement and no evidence provided by the parties display an intent to exclude breach of contract claims from the arbitration requirement. However, the Liquidator also claims that the Court cannot compel arbitration of the preferential transfer claims. The Liquidator compares this matter to several wrongful death actions, claiming that only the Liquidator, not KYHC, can bring a preferential transfer claim, similar to how only the estate of a deceased, not the deceased himself, can bring a wrongful death action. Richmond Health Facilities v. Nichols ,
While sharing some similarities, a liquidation action is different from a wrongful death action. The Liquidator is correct, the estate of a deceased person cannot bring a wrongful death claim because the essence of that suit is the wrongful loss of a loved one. Thus, close relatives, not the estate, brings these claims, and the monetary judgment goes directly to those relatives, not the estate. Ping ,
Furthermore, though not a signatory to the arbitration agreement, the Liquidator *630has sued CGI for breach of contract, seeking a direct benefit from the Agreement between KYHC and CGI. The Sixth Circuit has previously held that "a nonsignatory may be bound to an arbitration agreement under an estoppel theory when the nonsignatory seeks a direct benefit from the contract while disavowing the arbitration provision." Javitch ,
D
In the alternative, the Liquidator requests this Court stay the current matter pending resolution of the liquidation proceeding in Franklin Circuit Court. The Liquidator offers two separate theories: abstention under the principles of Colorado River Water Conservation Dist. v. United States or abstention under the principles of Younger v. Harris . However, neither abstention doctrine is applicable in this case.
1
The Supreme Court of the United States, in Younger v. Harris , created an abstention doctrine prohibiting federal courts from enjoining state court proceedings.
Once a proceeding fits into one of the three categories outlined in Sprint Commc'ns, Inc. or NOPSI , a court turns to a three-factor test, defined in Middlesex County Ethics Committee , to determine whether Younger abstention may occur. See Sprint Commc'ns, Inc. ,
The Liquidator jumps straight to addressing the Middlesex three-factor test, without addressing whether this is a circumstance *631where Younger abstention is appropriate. [R. 73 at 25.] First, Gaither v. Beam is clearly not an ongoing state criminal prosecution: it is a liquidation proceeding. Nor is Gaither v. Beam a state-initiated civil enforcement proceeding akin to a criminal prosecution. See Huffman v. Pursue, Ltd. ,
This third category, which encompasses "important judicial interests," is very narrow. The Supreme Court has applied Younger abstention to cases where parties sought injunctive relief against a state court order. For example, in Juidice v. Vail , the plaintiffs sought an injunction against an order holding them in contempt of state court, and the Supreme Court found that the federal district court must abstain under Younger .
In this matter, neither party has requested an injunction against an order of Franklin Circuit Court. [R. 75 at 20.] While there may be state interests that support abstention, abstention is an extraordinary remedy, only to be exercised when a case presents an enumerated "exceptional circumstance." See Sprint ,
2
The Supreme Court has recognized that situations exist where a federal court should abstain from exercising jurisdiction over a case that "involves substantially the same issues and substantially the same parties as a parallel case in state court." Total Renal Care, Inc. v. Childers Oil Co. ,
In order to determine whether abstention under Colorado River is appropriate, the Court must first determine whether there are parallel actions proceeding in both state and federal courts.
*632Romine v. Compuserve Corp. ,
(1) whether the state court has assumed jurisdiction over any res or property; (2) whether the federal forum is less convenient to the parties; (3) avoidance of piecemeal litigation; ... (4) the order in which jurisdiction was obtained ... (5) whether the source of governing law is state or federal ... (6) the adequacy of the state court action to protect the federal plaintiff's rights ... (7) the relative progress of the state and federal proceedings ... and (8) the presence or absence of concurrent jurisdiction....
Romine ,
First, the Court has already determined that this action does not involve res or property. The res involved in the liquidation proceedings in Franklin Circuit Court are not at issue in this case. Additionally, the federal forum is located less than a quarter of a mile from the state forum, providing no more or less convenience to the parties. Furthermore, the state court action would not adequately protect Beam Partners' rights, given that Kentucky precedent is dictated by Ernst & Young , which allows for reverse preemption of the FAA and denial of Beam Partners' petition for arbitration. Thus, the first, second, and sixth factors squarely oppose abstention.
Factors three, four, and seven relate to the parallel proceeding in state court. Here, there is no danger of piecemeal litigation. While similar, the contracts involved in Gaither v. Beam are all different, and all include different provisions and protections. Resolving the contract dispute between the Liquidator and CGI does not impact the resolution of other disputes and brings no danger of disparate judgments. Again, arbitration in this matter does not affect the liquidation proceedings and the policy holders. Thus, because there is no danger of piecemeal litigation, the third factor does not encourage abstention.
While Franklin Circuit Court first obtained jurisdiction, the primary focus of the litigation in the parallel proceeding has concerned the liability of Janie Miller and Joseph Smith, neither of which are a party to this matter in federal court. [R. 73 at 22.] This Court has spent the last two years hearing oral arguments and conducting briefing on this specific arbitration issue, while the parties provide no indication that the Franklin Circuit Court has begun to consider it.
Without the "clearest of justifications" that abstention is proper, the Court has a duty to exercise the jurisdiction conferred upon it by Congress. RSM Richter, Inc. v. Behr Am., Inc. ,
E
Finally, having determined that the Liquidator's claims are subject to arbitration, this matter must be stayed pursuant to
III
This court has "no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia ,
1. The Motion to Compel Arbitration by Petitioner CGI Technologies & Solutions, Inc. [R. 71 ] is GRANTED ;
2. The Liquidator's Motion to Dismiss [R. 73 ] is DENIED ;
3. The Liquidator is hereby COMPELLED to resolve her claims in arbitration;
*6344. Pursuant to
5. The State Court matter, insofar as it relates to the claims between the Liquidator and CGI Technologies & Solutions, Inc., is STAYED pending arbitration.
Individually and as Chief Executive Officer of KYHC
Individually and as Chairman of the Board of Directors for KYHC
Contemporaneous with this Opinion and Order, the Court issued an Opinion and Order in Beam v. Atkins to resolve similar issues.
Reference
- Full Case Name
- Nancy G. ATKINS, Liquidator of Kentucky Health Cooperative, Inc. v. CGI TECHNOLOGIES AND SOLUTIONS, INC.
- Cited By
- 6 cases
- Status
- Published