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United National Ins. Co. v. Aon Ltd.

July 24, 2009

UNITED NATIONAL INS. CO., ET AL., PLAINTIFFS,
v.
AON LTD., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pollak, J.

OPINION

The plaintiffs in this diversity action (hereafter "plaintiff" or "UNG"), a group of American corporations, have submitted a post-trial Motion To Alter or Amend the Judgment To Add Prejudgment Interest and/or Damages For Delay (docket no. 216) as well as a memorandum supporting the motion (docket no. 226). Defendants (hereafter "defendant" or "Aon"), a group of English corporations, have responded (docket no. 231), and UNG has submitted a reply (docket no. 239). The motion is ripe for disposition.

I. Background*fn1

In 1993, Aon (acting chiefly through its subsidiary Alexander Howden) served as UNG's broker in soliciting Riunione Adriatica di Sicurta, S.p.A. (hereafter "RAS," an Italian corporation) to become a reinsurer to UNG on a large program that furnished insurance to building contractors in the United States. Broadly speaking, a reinsurer provides insurance to the insurance company that has issued the underlying policies and is directly accountable to the insured persons or entities. Insurance companies may decide to purchase reinsurance in order to be reimbursed, in whole or in part, if they are required to pay losses under the policies that they have issued. RAS entered into a reinsurance agreement with UNG for the time period of September 2, 1993 to September 2, 1994 that involved two major coverage provisions. The claims filed by insureds under the building contractors program were considerable and exceeded the income generated from premiums.

In 1999, RAS commenced an arbitration against UNG seeking to rescind the reinsurance agreement on the ground that, as RAS alleged, it had been misled into the agreement by UNG or Aon or both, a claim which UNG denied. Aon was not a party to the arbitration, but Aon provided information and resources to UNG for its defense. Def. Mem. at 16. UNG also approached Aon about Aon's potential responsibility in the conflict. Reply Decl. of Jerome C. Katz ¶ 15.

On October 1, 2002, the arbitration panel awarded RAS partial rescission of the reinsurance agreement. RAS was instructed to return the applicable reinsurance premiums to UNG, and RAS was understood to no longer bear any financial responsibility for claims by insureds that arose under the rescinded portion of the agreement.

Invoking this court's diversity jurisdiction, UNG, on February 9, 2004, filed suit in the Eastern District of Pennsylvania against Aon for either indemnity or contribution. Under its indemnity claim, UNG sought "to recover 100% of its economic losses resulting from the Arbitration[,]" including attorneys' fees and expenses incurred in that earlier action.*fn2 UNG's indemnification theory was that Aon, acting as UNG's agent, committed the tort of negligent misrepresentation against RAS and that UNG only bore liability as a passive tortfeasor. Attempts at settlement were not fruitful. Reply Decl. ¶¶ 15-19.

Following more than four years of pretrial activity, a jury trial commenced in October 2008. Order of Sept. 10, 2008 (docket no. 148). During the second week of the trial, the court requested the parties to make a further attempt at settlement, but no resolution developed, even after a follow-up conference in chambers. Reply Decl. ¶ 16-17. Presentation of the evidence and arguments of both sides required the better part of nine weeks. Order of Dec. 4, 2008 (docket no. 213). The jury, instructed on the applicable Pennsylvania law,*fn3 returned a verdict for UNG on its indemnification claim and awarded the full amount of damages requested by UNG: $16,871,596 in losses resulting from the arbitration decision and $7,000,530 in attorneys' fees and costs occasioned by the arbitration. Verdict Form (docket no. 212).

Following the verdict, UNG filed the instant motion, seeking a discretionary grant of interest on its awarded damages pursuant to Fed. R. Civ. P. 59(e) and Pennsylvania law.

II. Analysis

There are three areas of contention regarding plaintiff's motion: whether UNG has legal recourse, and is entitled, to a prejudgment interest award; what rate of interest should apply; and what portion of its damages is subject to such an award.

A. The Availability of an Interest Award in this Case

The initial question is whether Pennsylvania law permits UNG's request for interest on its damages. The most illuminating case-law discussion of the state's prejudgment interest doctrine of which I am aware is in Lexington Ins. Co. v. Abington Co., 621 F. Supp. 18 (E.D. Pa. 1985),*fn4 which concisely canvasses the various avenues of this area of law with useful clarity:

The law of Pennsylvania with respect to "prejudgment interest" is, as Judge Adams stated, "far from perspicuous." Peterson v. Crown Financial Corp., 661 F.2d 287, 293 (3d Cir. 1981). The confusion appears to stem from the fact that Pennsylvania limits an award of interest as such to specified cases involving breach of contract, but allows for an interest-type remedy for delay in certain other cases. See Hussey Metals Division v. ...


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