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United National Insurance Co. v. Aon Ltd.

July 24, 2009


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


In this diversity action, defendants (hereafter "defendant" or "Aon"), a group of English corporations, have submitted a post-trial Motion for Judgment as a Matter of Law or for a New Trial (docket no. 217) and a memorandum supporting the motion (docket no. 228). Plaintiffs (hereafter "plaintiff" or "UNG"), a group of American corporations, have responded (docket no. 233), and Aon has submitted a reply (docket no. 235). The motion is ripe for disposition.


I will forego a recitation of the facts and procedural history of the case because this opinion is being filed contemporaneously with the court's decision on plaintiff's Motion to Alter or Amend the Judgment (docket no. 216), which contains an appropriate summary.


A. Legal Arguments for Judgment as a matter of Law

A district court may grant judgment as a matter of law under Rule 50 if "a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally-sufficient evidentiary basis to find for the party on that issue." Fed. R. Civ. P. 50(a). A party must move for this remedy prior to submission of the case to the jury. Id. After the entry of judgment, the moving party may renew its motion. Fed. R. Civ. P. 50(b).*fn1 Based on the language of the rule itself, Rule 50(b) motions tend to challenge whether the trial record contained sufficient evidence to support the jury verdict, and, as stated in greater detail below, the moving party bears a heavy burden in order to prevail in that context. However, a party may, as Aon has done here, base part or all of its Rule 50(b) motion on an alleged error of law. The district court reviews such contentions "on a purely legal basis that does not depend on rejecting the jury's findings on the evidence at the trial." Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir. 2009).

1. Availability of Indemnification as a Cause of Action

Aon argues that UNG's indemnification claim is not available, as a matter of law, because that doctrine is strictly a "a fault-sharing mechanism ... available only to recover an award of damages" and cannot be applied to a situation where a third party obtained rescission of a contract. Def. Mem. at 4-5 (emphasis in original). Aon previously lodged this argument in its Motion to Dismiss (docket nos. 28, 31); this court denied the motion (docket no. 40). Aon does not appear to have raised this issue in its Rule 50(a) motion to the court. Trial Transcript at 6019-6036, Un. Nat'l Ins. Co. v. Aon Ltd., Civ. No. 04-539 (E.D. Pa. 2008) ("Tr. Trans."). "The rule that a post-trial Rule 50 motion can only be made on grounds specifically advanced in a motion for a directed verdict at the end of plaintiff's case is the settled law of this circuit." Kutner Buick, Inc. v. Am. Motors Corp., 868 F.2d 614, 617 (3d Cir. 1989). Accordingly, Aon is foreclosed from making this argument in its Rule 50(b) motion. At all events, the court stands by the reasoning advanced at the March 22, 2005 hearing when it denied this ground for Aon's motion to dismiss. Further, TIG Ins. Co. v. Aon Re, Inc., 521 F.3d 351 (5th Cir. 2008), relied on considerably by Aon in its Rule 50(b) motion, is unhelpful here as the court in TIG was not applying the law of Pennsylvania, which governs this diversity case, but Texas's rather restrictive common law indemnification doctrine.

2. Applicability of the Restatement (Second) of Torts § 552 to this suit

Aon argues that, in the wake of Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa. 2005), and the subsequent case law, UNG's negligent misrepresentation theory of liability must fail as a matter of law. Aon has advanced this argument in some depth on prior occasions (see Def. Mem. in Support of Motion for Sum. Judg. (docket no. 72-2) at 17-21; Def. Mem. in Support of Motion for Interlocutory Appeal (docket no. 100)), and on each occasion I have found the argument unpersuasive. I remain of the view that (1) Section 552 of the Restatement (Second) of Torts has pertinent application to this case, and (2) grounds exist for finding that Aon owed a duty to RAS. See Transcript of Hrg. on Mot. for Sum. Judg., Un. Nat'l Ins. Co. v. Aon Ltd., Civ. No. 04-539 (E.D. Pa. Feb. 13, 2008); Mem. of Apr. 7, 2008 (docket no. 108).

Aon makes much of the Third Circuit opinion in Sovereign Bank v. BJ's Wholesale Club, Inc., 533 F.3d 162 (3d Cir. 2008), asserting that it forecloses UNG's theory of liability. I find the argument unpersuasive. The Third Circuit in Sovereign Bank determined that, in Bilt-Rite, "The Pennsylvania Supreme Court never suggested that it intended to severely weaken or undermine the economic loss doctrine .... It simply carved out a narrow exception when losses result from the reliance on the advice of professionals." 533 F.3d at 177-78. This court notes that the plaintiff in Sovereign Bank did not bring a § 552 claim against the defendant; instead, the plaintiff sued on a more general negligence theory and pointed to Bilt-Rite as support for its contention that the negligence claim was not barred by the economic loss doctrine. Id. at 175-76. The Third Circuit stated that the realm of Bilt-Rite and § 552 was "simply not our case" and that economic loss squarely applied. Id. at 177-78. Accordingly, this court finds little guidance in Sovereign Bank regarding the application of § 552 in Pennsylvania.

B. Insufficiency of Evidence Arguments for Judgment as a matter of Law

"Entry of judgment as a matter of law is a sparingly invoked remedy," Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007) (internal quotation omitted). More specifically, as regards arguments of insufficient evidence, the Third Circuit directs:

Such a motion should be granted only if, viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability. In determining whether the evidence is sufficient to sustain liability, the court may not weigh the evidence, determine the credibility of witnesses, or substitute its version of the facts for the jury's version.

Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993) (internal citations omitted).

First, Aon contends that, on the record evidence, no reasonable jury could have found that Aon was "in the business of supplying information" such that it could be found liable under § 552. Def. Mem. at 17. Aon argues that it served exclusively, and overtly, as a representative for UNG and ferried information between its client and RAS - but at no time professionally developed or furnished information for RAS's consideration.

The record, however, contains ample evidence from which a jury might reasonably conclude that Aon was in the business of supplying information as a primary component of its broking duties, and not merely a messenger. For example, after broadly outlining how Aon gathered, compiled, and presented various pertinent statistics of the contractor's program, David Warman, an Aon manager, stated that "I regard it as my job even now to make sure that everything we feel as a broker that needs to be shown to an insurer, that we believe he needs and wants to have to evaluate the risk, needs to be presented." Tr. Trans. 1082:18-22. Warman went on to say, "It is a requirement of every broker that I worked for, including [Aon], to ensure that when a broker provided the information to the underwriters that the broker provided all the information that he felt that the underwriter needed to assess the risk. A broker could take an independent, individual judgment on what that meant with each underwriter ...

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