judgment as to this issue, i.e., whether the plaintiff sustained an insured loss. We disagree that such an issue of fact is created by any ambiguities in either the Short Term or Master policies. We find both policies are clear, unambiguous and subject to only one interpretation, i.e., that there must be an actual shipment of goods before Hamilton Bank may claim it has sustained an insured loss. We are unpersuaded by the plaintiff's argument that its good faith production of the bills of lading and airway bills referred to earlier constituted a waiver of the policies' requirement that there be an actual shipment of goods or somehow estops Eximbank from denying coverage on the grounds that this requirement has not been fulfilled. The policies' provisions regarding production of proof of loss merely establish a methodology for an insured to assert a claim and a time frame in which Eximbank, through its agent FCIA, must respond. The simple production in good faith of such documentation did not, by the very fact it was produced, create insured transactions. See Fleet National Bank v. Export-Import Bank of the United States, et al., 612 F. Supp. 859 (D.C. D.C. 1985) (reading of contract as requiring actual shipment of goods "has considerable appeal".)
We are also unpersuaded by the plaintiff's argument that the defendants' construction of the policies vitiates the purpose underlying the policy and the very reason for Eximbank's existence. While it may be true that the denial of coverage for such claims may hinder the plaintiff and other lending institutions from extending such credit in the future, such a consequence does not require nor does it allow us to reform the terms of the insurance policies involved. It is the obligation of Eximbank, not this Court, to determine how to best facilitate the export of American goods under its statutory authority, and we will not, nor can we, second guess Eximbank's decision as to how to exercise its authority.
Although we find the insurance contracts are clear and unambiguous, we are precluded from entering summary judgment in the defendants' favor on this issue because the record before us discloses a material issue of fact as to whether the goods and merchandise were "shipped". While Mr. Joseph M. Piepul, Senior Counsel for the FCIA, states in his affidavit that FCIA's "claim investigation revealed that no actual shipment of goods had taken place", documentation presented by Hamilton Bank indicates such shipments, at least in part, may have indeed occurred. (Plaintiff's memorandum in opposition to defendants' motion, Ex. A - "Telex from Joseph Piepul to Ms. Sheila Harris", and Ex. 1 - affidavit of Sheila Harris). Thus, we believe the plaintiff must be given the opportunity to prove such shipments did occur. See Fleet National Bank v. Export-Import Bank, supra.
B. Waiver & Estoppel.
The defendants next argue that Hamilton Bank's action on claims 1 through 10 is time barred based upon the limitation of suit clause contained in the Short Term policy applicable to said claims. The policy provides in Article IX that, "No action shall lie against the Insurers or any of them with respect to any loss unless . . . commenced prior to the expiration of eighteen months from the due date of the indebtedness". (Emphasis added). It is undisputed that, absent any tolling of the limitation of suit clause, the plaintiff's action on claims 1 through 10 was commenced after the eighteen-month period had run.
Hamilton Bank, however, argues that the defendants by their conduct tolled the running of the limitation of suit clause.
Specifically, the plaintiff refers this Court to a letter from Joseph Piepul addressed to, inter alia, Ms. Sheila Harris, in which he states:
With respect to the handling of FCIA claims, you and your principals are granted extensions until January 1, 1984 of all filing deadlines or filing requirements for claims or information under your respective . . . Policies".
(Plaintiff's memorandum in opposition to defendants' motion, Ex. B). The plaintiff argues that based upon this letter the defendants are now estopped from relying upon the deadlines created by Article IX because their conduct tolled the provision for one hundred thirty-four (134) days, i.e., the period from the date of the letter to January 1, 1984.
There is no doubt that an insurer may waive such a provision or by its conduct become estopped from asserting the limitation. Such is not the case here however. Even assuming the phrase "all filing deadlines or filing requirements" may be interpreted as encompassing the provisions regarding filing of suit, the letter expressly limited the extension to January 1, 1984, and no inference may reasonably be drawn from the document that all deadlines were concomitantly extended for a period of one hundred thirty-four (134) days past January 1, 1984. We also question whether traditional principles of waiver and estoppel, i.e., Pennsylvania law, apply here since the actual insurer in this instance is an agency of the United States Government. As stated by the Third Circuit Court of Appeals in Lovell v. Export-Import Bank, et al., supra, "courts have been reluctant to apply estoppel against the government . . . based upon considerations of sovereign immunity, separation of powers, and public policy". 777 F.2d at 898. Thus, some form of "affirmative misconduct" on the government's part is required before estoppel may be invoked against it. The record before us discloses no such affirmative misconduct nor has the plaintiff adduced any issue of fact as to this question. Id. at 899. However, whether we apply traditional principles of estoppel or the higher standards applicable when estoppel is asserted against the government, we reach the same result, i.e., that the defendants did not waive the provisions of Article IX nor did they by their conduct become estopped from asserting the limitation.
Hamilton Bank further argues that the defendants may not rely upon the limitation of suit clause absent a showing that they were somehow prejudiced by the plaintiff's failure to file suit within the prescribed deadline. See ACF Produce, Inc., v. Chubb/Pacific Indemnity Group, 451 F. Supp. 1095 (E.D. Pa. 1978). Such clauses were completely acceptable and enforceable at common law without any demonstration of prejudice. However, the developments in the law pertaining to contracts of adhesion has raised serious doubts as to the efficacy of such provisions. See Brakeman v. Potomac Insurance Co., 472 Pa. 66, 371 A. 2d 193 (1977) (insurer must demonstrate prejudice flowing from insured's failure to comply with a notice of loss provision) and Diamon v. Penn Mutual Fire Insurance Co., 247 Pa. Super. 534, 372 A. 2d 1218 (1977) (plurality opinion)(insurer effectively tolled running of limitation of suit clause by instigating institution of criminal charges against insured). The Pennsylvania Supreme Court has not as yet ruled whether an insurer is required to demonstrate such prejudice where the limitation of suit clause is not required by statute to be included in the policy. See Esbrandt v. Provident Life and Accident Insurance Company, 559 F. Supp. 23 (E.D. Pa. 1983), aff'd. mem., 722 F.2d 731 (insurer need not demonstrate prejudice from violation of limitation of suit clause in group life insurance policy where provision required by Pennsylvania statute) and Petraglia v. American Motorists Insurance Co., 284 Pa. Super. 1, 424 A. 2d 1360 (1981)(insurer need not demonstrate prejudice from violation of limitation of suit clause where provision required by statute). The federal district court in ACF Produce, supra, held that under Pennsylvania law an "insurer may (not) avail itself of the limitation of suit clause absent a showing of prejudice". 451 F. Supp. at 1098. The court's ruling, however, has been questioned by at least two other courts. The Third Circuit Court of Appeals in Leone v. Aetna Casualty & Surety Company, 599 F.2d 566, 569, fn. 4 (3d Cir. 1979), stated it was not as sure as the court in ACF Produce that " Diamon meant to apply Brakeman. . . to the type of contractual clause at issue there," i.e., a limitation of suit clause. The Pennsylvania Superior Court raised the same question in Petraglia, supra. See also, Pini v. Allstate Insurance Company, 499 F. Supp. 1003, 1005, fn. 4 (E.D. Pa. 1980).
While the above discussion demonstrates the unsettled nature of the law in Pennsylvania in this area, we conclude that an insurer need not demonstrate prejudice in order to rely upon a limitation of suit clause even where the provision is not required by statute to be included in the policy. We reach this conclusion based upon established precedent and the failure of the Pennsylvania Supreme Court to overrule that precedent. Further, as stated earlier, we also question the applicability of Pennsylvania law to this action, United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S. Ct. 1448, 59 L. Ed. 2d 711 (1979), and applying general principles of the common law of contracts, such a showing of prejudice is not necessary.
See also, Fleet National Bank v. Export-Import Bank, supra.
C. Sovereign Immunity.
The defendants' final argument is that they are immune from suit on Counts II and III of the plaintiff's Complaint under the doctrine of sovereign and/or official immunity. Eximbank argues it is immune from suit as an agency of the United States. See 12 U.S.C. § 635. FCIA argues it is entitled to official immunity as the agent of Eximbank.
We agree with the defendants that the plaintiff's exclusive tort remedy against Eximbank is the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671-80, and find the plaintiff's reliance upon the "sue and be sued" clause in Eximbank's authorizing statute to be misplaced. The FTCA explicitly provides that:
The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedy provided by this title in such case shall be exclusive.