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PCH Mutual Insurance Co., Inc v. Casualty & Surety

August 5, 2008


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


The above-captioned action arises out of an alleged breach of an Administrative Services Agreement (the "Agreement") entered into by Plaintiff PCH Mutual Insurance Company, Inc. ("PCH") and Defendant Casualty & Surety, Inc. ("CSI"). After removing this action from the Superior Court for the District of Columbia, CSI filed a Motion to Compel Arbitration and Stay Proceedings, which PCH opposes. Despite the pending Motion to Compel Arbitration, the parties appear to have agreed to and begun discovery in this matter, without a Court order to that effect. However, recognizing that engaging in discovery might prejudice its Motion to Compel Arbitration, CSI filed a Motion to Stay Discovery pending resolution of that Motion, which PCH likewise opposes. The Court has conducted a searching review of the parties' filings in connection with the two pending motions, the exhibits attached thereto, the relevant statutes and case law, and the entire record herein. Based upon the foregoing, the Court concludes that a genuine issue of material fact exists as to whether the parties' Agreement provides for mandatory arbitration of disputes arising out of the Agreement. As "the making of the agreement for arbitration" between the parties is thus "in issue," the Court shall, as required by the Federal Arbitration Act ("FAA"), 9 U.S.C. § 4, "proceed summarily to the trial" of the issue. Accordingly, the Court shall HOLD IN ABEYANCE CSI's [8] Motion to Compel Arbitration and Stay Proceedings and, as set forth in the Order accompanying this Memorandum Opinion, shall require the parties to confer and submit to the Court in a joint status report a proposal and schedule for further proceedings to resolve the arbitrability issue. Further, because the Court must resolve the threshold arbitrability issue before the litigation of this matter can continue, the Court shall GRANT-IN-PART CSI's [27] Motion to Stay Discovery and shall stay discovery related to the merits of this litigation pending a resolution of the threshold arbitrability issue. The parties may, however, conduct discovery related to the issue of arbitrability, if such discovery is appropriate in proceeding to a trial of the issue. If that is the case, the parties should submit a joint discovery plan to the Court for its approval.


Plaintiff PCH is a risk retention group (RRG), domiciled in the District of Columbia, whose "primary activity consists of assuming and spreading all, or any portion of the liability exposure of its group members." Pl.'s Mot. to Compel Opp'n at 1-2 (quoting 15 U.S.C. § 3901(4)). Defendant CSI is an insurance broker based in Alabama. Def.'s Mot. to Compel at 4. On March 18, 2008, after the above-captioned action was filed in Superior Court, CSI filed with the California Secretary of State to qualify to do business in California. Pl.'s Mot. to Compel Opp'n at 3 (citing Ex. B (4/7/08 Decl. of T. Thompson ¶ 3)).

On March 31, 2004, PCH and CSI entered into an Administrative Services Agreement, under which CSI was to act as PCH's managing general underwriter. Id.; Def.'s Mot. to Compel, Ex. A (Agreement). Relying upon a Declaration made by Jon Harkavy, PCH's manager, PCH asserts that CSI drafted the Agreement at issue in this case. See Pl.'s Mot. to Compel Opp'n at 11, Ex. C (4/7/08 Decl. of J. Harkavy). In contrast, CSI asserts, relying upon the Declaration of Dave Condon, that PCH drafted the Agreement. Def.'s Mot. to Compel Reply at 1, Ex. A (4/25/08 Decl. of D. Condon). Specifically, in his Declaration, Mr. Condon avers that he "was involved in the negotiations that ultimately concluded in the execution of the [Agreement]," that he "supplied [PCH] with agreements previously executed by CSI in such regard," that PCH "apparently utilized those specimen agreements in drafting the [Agreement]," such that as a result, Mr. Harkavy's declaration is allegedly false insofar as it asserts that CSI drafted the Agreement. Id.

Only a few of the Agreement's provisions are relevant to the pending motions. First, and most significantly, Paragraph 17*fn1 of the Agreement provides:

17. Arbitration. Any disputes concerning any aspect of this Agreement may be submitted to binding arbitration. The prevailing party shall be entitled to recover all costs incurred, including reasonable attorney's fees.

Agreement ¶ 17. In addition, Paragraph 14 of the Agreement provides:

14. Injunction. In the event that [CSI], its employees, agents, brokers and/or representatives, attempt to breach the terms of this Agreement, [PCH] shall, in addition to its rights and remedies available to it at law or in equity, have the right to seek an injunction against [CSI] to enforce the provisions of this Agreement. [CSI] agrees to be responsible for and to reimburse [PCH] for any attorney's fees and costs associated with any legal action taken by [PCH] to enforce the terms of this Agreement.

Id. ¶ 14. Finally, Paragraph 24 of the Agreement provides:

[24]. Binding Effect and Governing Law. This Agreement binds and benefits the parties, their permitted successors, assigns and transferee[s], if specifically enforceable and governed by and construed in accordance with the law of the [State of] California.

Id. ¶ 24.

On January 22, 2008, PCH filed a four-count complaint against CSI in the Superior Court for the District of Columbia (Case No. 08-00499). See Docket No. [1]. On February 19, 2008, CSI removed the case to this Court, and on February 25, 2008, CSI filed its Answer and Counterclaim. Id.; Docket No. [4]. In its Answer, CSI advised the Court that on February 21, 2008, it served notice upon PCH of CSI's intent to petition this Court for an Order compelling arbitration, and further advised that CSI would file such a petition with the Court if PCH did not consent to CSI's request. Id. at 5 n.1. CSI filed its Motion to Compel Arbitration and Stay Proceedings on March 7, 2008. See generally Def.'sMot. to Compel. PCH filed an Opposition to CSI's Motion, and CSI filed a Reply in support of its Motion.

On May 7, 2008, PCH filed a Motion for Leave to File a Sur-Reply in further opposition to CSI's Motion to Compel Arbitration, in order to respond to CSI's citation of two Supreme Court cases for the first time in its Reply. See Docket No. [22]. Although that Motion indicates that CSI opposes PCH's request to file a sur-reply, CSI has not filed an opposition to that effect. As the Court concludes that CSI's Reply in fact raises a new argument, the Court shall grant PCH's [22] Motion for Leave to File a Sur-Reply in the Order accompanying this Memorandum Opinion, and shall consider PCH's sur-reply herein. See United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d 270, ...

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