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Ggis Insurance Services, Inc, D/B/A v. Lincoln General Insurance

February 7, 2011

GGIS INSURANCE SERVICES, INC, D/B/A GUARDIAN GENERAL INSURANCE SERVICES AND RICHARD ACUNTO, PLAINTIFFS
v.
LINCOLN GENERAL INSURANCE
COMPANY, INC., DEFENDANT GGIS INSURANCE SERVICES, INC
DOING BUSINESS AS GUARDIAN
GENERAL INSURANCE SERVICES, :
PLAINTIFF
v.
LINCOLN GENERAL INSURANCE
COMPANY, SCOTT BUTLER, AN
INDIVIDUAL, KINGSWAY FINANCIAL
SERVICES, INC., AND DOES 1 THROUGH100, INCLUSIVE, DEFENDANTS



The opinion of the court was delivered by: Judge Conner

(CONSOLIDATED CASES)

Judge Conner

MEMORANDUM

Presently before the court are motions (Civ. A. No. 1:10-CV-0932, Doc. 28; Civ. A. No. 1:10-CV-1000, Doc. 73), filed by defendants Scott Butler ("Butler") and Kingsway Financial Services, Inc. ("Kingsway"), for reconsideration of the order of the court (Civ. A. No. 1:10-CV-0932, Doc. 27; Civ. A. No. 1:10-CV-1000, Doc. 72) dated December 1, 2010, in which the court granted the motion of GGIS Insurance Services, Inc. ("GGIS") to consolidate the cases previously consolidated at Civil Action No. 1:10-CV-0932, with Civil Action No. 1:10-CV-1000. Butler and Kingsway assert that GGIS erroneously included a certificate of concurrence with its motion to consolidate that indicated that Butler and Kingsway concurred in the motion. Butler and Kingsway aver that GGIS did not seek their concurrence or nonconcurrence in the matter, and that they do not concur in the motion to consolidate. They assert that consolidation is substantially prejudicial to them and is thus manifestly unjust. For the reasons that follow, the court will grant the motions and vacate the court order consolidating Civ. A. No. 1:10-CV-0932 with Civ. A. No. 1:10-CV-1000.

I. Background

Litigation in the three suits currently consolidated at Civ. A. No. 1:10-CV-0932 stem from dealings between GGIS andRichard Acunto ("Acunto")-the principal owner, president and CEO of GGIS-and Lincoln dating back to 2005. In April of 2005, Lincoln and GGIS entered into a written agreement entitled the Program Manager Agreement ("PMA"). Under the agreement GGIS acted as Lincoln's fiduciary in managing insurance brokers selling Lincoln's insurance policies. Acunto, personally guaranteed the PMA in a separately executed document. The relationship between the parties deteriorated, and Lincoln filed a civil action in California state court. That action was voluntarily dismissed based on the parties intent to resolve their disputes among themselves.

On July 30, 2008, Lincoln demanded arbitration against GGIS and Acunto relating to an escrow account and contingent commissions allegedly due to Lincoln under the PMA. GGIS disputed whether arbitration was the proper forum, however, an arbitration panel determined that it was the proper body to determine the panel's jurisdiction over the dispute and that the dispute fell within the arbitration provision of the PMA. On March 30, 2010, the arbitration panel issued its final award. The panel reaffirmed its conclusion that it had jurisdiction over GGIS and Acunto and found for Lincoln.

A. Litigation in 1:10-CV-0932 and 1:10-CV-0967

On April 29, 2010, GGIS and Acunto filed a petition with this court to vacate or modify the arbitration award. The case was originally docketed as GGIS Insurance Services, Inc. et al. v. Lincoln General Insurance Company, Inc. et al., Civil Action No. 1:10-CV-0932. GGIS asserted in its petition that the arbitration award was invalid because the panel lacked jurisdiction over the matter, Lincoln had waived its right to arbitration, and the matter was currently being litigated in California courts. (See Civ. A. No. 1:10-CV-0932, Doc. 1). The following day, on April 30, 2010, Lincoln filed a petition to confirm the arbitration award in the Court of Common Pleas of York County, Pennsylvania. (See Civ. A. No. 1:10-CV-0967, Doc. 1-3). GGIS removed the matter to this court on May 5, 2010. (Id.) The matter was docketed as Lincoln General Insurance Company v. Guardian General Insurance Services, Inc. et al., Civil Action No. 1:10-CV-0967.

B. Litigation in 1:10-CV-1000

On June 24, 2009, while the disputes between the parties regarding arbitration were ongoing, GGIS initiated proceedings in California state court against Lincoln, Butler and Kingsway alleging nine causes of action relating to the PMA and the dealings between the parties.*fn1 (Civ. A. No. 1:10-CV-1000, Doc. 1-2). GGIS served Lincoln on January 25, 2010. On February 3, 2010, Lincoln removed the action to the District Court for the Central District of California. (Id.) Lincoln, then answered the complaint and asserted improper venue. (Civ. A. No. 1:10-CV-1000, Doc. 11). The Central District granted Lincoln's motion to transfer venue on May 3, 2010. (Civ. A. No. 1:10-CV-1000, Doc. 48). This court docketed the case as GGIS Insurance Services, Inc. V. Lincoln General Insurance Company et al., Civil Action No. 1:10-CV-1000.

On June 3, 2010, this court held a telephone status conference with counsel for all parties to all three cases. The court ordered that GGIS's petition and Lincoln's petition with respect to the arbitration award be consolidated into one action docketed at Civil Action No. 1:10-CV-0932 (hereinafter "arbitration action"). (Civ. A. No. 1:10-CV-0932, Doc. 10). The parties agree that there was some discussion regarding consolidating the nine count civil action at 1:10-CV-1000 with the consolidated petitions, however, the parties disagree about the conclusion of that discussion. (See Civ. A. No. 1:10-CV-0932, Doc. 29, at 6; Civ. A. No. 1:10-CV-1000, Doc. 74, at 6; Doc. 75, at 3). On September 15, 2010, both parties in the consolidated action filed motions for summary judgment. (See Civ. A. No. 1:10-CV-0932, Docs. 16, 19).*fn2

On November 24, 2010, GGIS filed a motion (Civ. A. No. 1:10-CV-1000, Doc. 69) to consolidate the previously consolidated arbitration action with the civil action at 1:10-CV-1000, as well as a brief in support. (Civ. A. No. 1:10-CV-1000, Doc. 70). Counsel for GGIS attached to both the motion and the brief in support a document entitled "Certificate of Concurrence" in which counsel certified that at the June 3, 2010 status conference, "the Court, in the presence of counsel for all parties attorneys, invited this motion to consolidate, and I agreed to file the motion without any further objection or comment of counsel as to agreement or disagreement."

(Civ. A. No. 1:10-CV-1000, Doc. 69-1; Doc. 70). On the basis of this "certificate of concurrence" the court granted the motion (Civ. A. No. 1:10-CV-1000, Doc. 69) to consolidate on December 1, 2010. (See Civ. A. No. ...


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