Weyerhaeuser Company v. Novae Syndicate 2007 et al, No. 2:2018cv00585 - Document 87 (W.D. Wash. 2019)
Court Description: ORDER denying Defendants Hiscox Dedicated Corporate Member Limited as representative member of Syndicate 33 at Lloyd's and Starr Underwriting Agents Ltd.'s 79 Motion motion to reopen briefing on Plaintiff Weyerhaeuser Company's motion for summary judgment. Signed by Judge James L. Robart. (PM)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 WEYERHAEUSER COMPANY, ORDER DENYING MOTION TO REOPEN SUMMARY JUDGMENT BRIEFING Plaintiff, 11 v. 12 13 NOVAE SYNDICATE 2007, et al., Defendants. 14 15 16 CASE NO. C18-0585JLR I. INTRODUCTION Before the court is Defendants Hiscox Dedicated Corporate Member Limited as 17 representative member of Syndicate 33 at Lloyd’s and Starr Underwriting Agents Ltd.’s 18 (collectively, “Hiscox/Starr”) motion to reopen briefing on Plaintiff Weyerhaeuser 19 Company’s (“Weyerhaeuser”) motion for summary judgment. (MTR (Dkt. # 79); see 20 also MSJ (Dkt. # 36).) Weyerhaeuser opposes the motion. (Resp. (Dkt. # 82).) 21 Hiscox/Starr filed a reply. (Reply (Dkt. # 85).) The court has considered the motion, the 22 parties’ submissions concerning the motions, the relevant portions of the record, and the ORDER - 1 1 applicable law. Being fully advised,1 the court DENIES Hiscox/Starr’s motion to reopen 2 summary judgment briefing. 3 4 II. BACKGROUND For the 2016-17 policy year, Weyerhaeuser purchased a layered program of excess 5 liability insurance, including policies issued by Hiscox/Starr and Defendants Novae 6 Syndicate 2007 (“Novae”), Apollo Liability Consortium 9984 (“Apollo”), SCOR UK 7 Company Ltd. (“SCOR”), Starstone Syndicate 1301 (“Starstone”), and ANV Casualty 8 Consortium 9148 (“ANV”) (collectively, “Defendants”), among other carriers. (Lambdin 9 Decl. (Dkt. # 37) ¶ 2.) The policies form a six-layer “tower” that provides a total of $300 10 million in liability limits. (Id.) At issue in this action are four policies issued by 11 Defendants (“the Policies”). (See Compl. (Dkt. # 1).) Weyerhaeuser seeks a declaratory 12 judgment that it is not required to arbitrate in the United Kingdom coverage disputes that 13 may arise under the Policies. (See id. ¶¶ 35-37.) 14 Non-party Lex-London Casualty Corp. (“Lex-London”), Weyerhaeuser’s primary 15 carrier, issued the tower’s first-layer policy (“the Lex-London Policy”). (Lambdin Decl. 16 ¶ 2, Ex. B.) The Lex-London Policy includes an arbitration “endorsement” that requires 17 any dispute “arising out of or relating to” to the Lex-London Policy to be arbitrated in 18 London. (Id. at 41.2) The Policies all “follow form” to, or incorporate by reference, the 19 20 21 1 No party requests oral argument on the motion (see MTR; Resp.), and the court concludes that oral argument would not be helpful to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4). 2 22 When citing the Lex-London Policy and other exhibits referenced herein, the court cites the page number generated by CM/ECF. ORDER - 2 1 Lex-London Policy, to the extent that the Lex-London Policy is not inconsistent with the 2 Policies. (See Lambdin Decl. ¶ 3, Ex. C (“Novae, Apollo, & ANV Policy”) at 8; id., Ex. 3 D (“SCOR Policy”) at 9; id., Ex. E (“Starstone Policy”) at 9; id., Ex. F (“Hiscox/Starr 4 Policy”) at 9.) Additionally, each Policy contains an “NMA 1998 Service of Suit Clause 5 (USA)” (“the NMA 1998 Endorsement”). The NMA 1998 Endorsement requires that, 6 “in the event of the failure of the [Defendants] hereon to pay any amount claimed to be 7 due hereunder, the [Defendants] . . . will submit to the jurisdiction of a Court of 8 competent jurisdiction within the United States.” (Novae, Apollo, & ANV Policy at 19; 9 SCOR Policy at 20; Starstone Policy at 19; Hiscox/Starr Policy at 20.) According to 10 Weyerhaeuser, the NMA 1998 Endorsement demonstrates that the parties intended to 11 submit coverage disputes to courts in the United States, not arbitration in London. (See 12 MSJ at 5-11.) 13 After Weyerhaeuser filed suit, former Defendant XL Catlin Syndicate 2003 (“XL 14 Catlin”) filed a parallel action (“the XL Catlin Action”) in the High Court of Justice of 15 England and Wales (“the English High Court”). (See Stip. MTS (Dkt. # 12) at 1.) On 16 December 21, 2018, the English High Court ruled that, under the language of the policy 17 XL Catlin issued Weyerhaeuser, Weyerhaeuser is required to arbitrate insurance 18 coverage disputes with XL Catlin in London. (See 1/2/19 JSR (Dkt. # 59) at 2, Exs. A, 19 B.) The relevant language in the XL Catlin policy is the same as that in Defendants’ 20 policies. (See Cordell Decl. (Dkt. # 6) ¶ 6.) While the XL Catlin Action was pending, 21 Weyerhaeuser filed a motion for summary judgment. (See MSJ.) After the English High 22 Court issued its decision, the court ordered the parties to submit supplemental briefing on ORDER - 3 1 the preclusive effects, if any, of the English High Court’s ruling with respect to 2 Weyerhaeuser’s action against Defendants. (1/25/19 Order (Dkt. # 64) at 2); 1/31/19 3 Order (Dkt. # 66) at 1-2.) Supplemental briefing closed on February 15, 2019. (1/31/19 4 Order at 2.) 5 Hiscox/Starr now moves to reopen summary judgment briefing. (See MTR.) 6 Hiscox/Starr represents that there is good cause to reopen briefing because it “recently 7 learned” that three non-party excess liability carriers—Chubb Bermuda Insurance Ltd. 8 (“Chubb”), Endurance Specialty Insurance Ltd. (“Endurance”), and Allied World 9 Assurance Company Ltd. (“Allied”) (collectively, “the Non-Party Insurers”)—have 10 obtained anti-suit injunctions against Weyerhaeuser in courts in the United Kingdom. 11 (Id. at 2.) Like Defendants’ Policies, the Non-Party Insurers’ policies sit atop the 12 Lex-London Policy in Weyerhaeuser’s coverage tower. (See id. at 2; Resp. at 2-3.) 13 According to Hiscox/Starr, the details of the foreign proceedings involving the Non-Party 14 Insurers are “clearly relevant to whether [D]efendant[s] . . . are entitled to arbitration in 15 London.” (MTR at 4.) 16 17 III. ANALYSIS A district court has broad discretion to determine whether a party may supplement 18 the record on summary judgment. See, e.g., Navellier v. Sletten, 262 F.3d 923, 941 (9th 19 Cir. 2001) (noting that the Ninth Circuit “review[s] . . . challenges to trial court 20 management for abuse of discretion”); Moreno v. Ross Is. Sand & Gravel Co., No. 21 2:13-cv-00691-KJM-KJN, 2015 WL 5604443, at *5 (E.D. Cal. Sept. 23, 2015) (noting 22 that “[a] district court has discretion to permit a litigant to supplement the summary ORDER - 4 1 judgment record”) (citing Betz v. Trainer Wortham & Co., 610 F.3d 1169, 1171 (9th Cir. 2 2010)). When deciding motions to supplement the record, the court should be mindful 3 that public policy favors the disposition of cases on their merits, and that “disposition of a 4 case on a more complete record must be preferred to disposition on a less complete 5 record.” Block v. Solis, No. C08-1850JLR, 2010 WL 2079688, at *9 (W.D. Wash. May 6 20, 2010) (citing In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 7 1228 (9th Cir. 2006) (en banc)). 8 Weyerhaeuser argues that the additional briefing Hiscox/Starr seeks is not relevant 9 to the pending summary judgment motion. As Weyerhaeuser points out, the policies 10 issued by the Non-Party Insurers include dispute resolution provisions different than 11 those found in Defendants’ Policies. (Resp. at 2.) Like Defendants’ Policies, the 12 Non-Party Insurers’ policies incorporate the Lex-London Policy by reference. (Id. at 2.) 13 However, none of the Non-Party Insurers’ policies include the NMA 1998 Endorsement. 14 (See generally Sheridan Decl. (Dkt. # 83) ¶ 2, Ex. A (“Chubb Policy”); id. ¶ 3, Ex. B 15 (“Endurance Policy”); id. ¶ 4, Ex. C (“Allied Policy”).) Rather, the Non-Party Insurers’ 16 policies include an express arbitration endorsement providing that any dispute or claim 17 arising out of or relating to the policies must be submitted to arbitration in London. 18 (Chubb Policy at 7; Endurance Policy at 11; Allied Policy at 21.) The arbitration 19 endorsement found in the Non-Party Insurers’ policies is not written into any of 20 Defendants’ Policies. (See Resp. at 3; see generally Novae, Apollo, & ANV Policy; 21 SCOR Policy; Starstone Policy; Hiscox/Starr Policy.) Weyerhaeuser represents that the 22 Non-Party Insurers sought anti-suit injunctions in the United Kingdom pursuant to the ORDER - 5 1 arbitration endorsements in their policies. (Resp. at 4.) Weyerhaeuser has since resolved 2 those actions through confidential agreements with the Non-Party Insurers. (Id.; see also 3 Sheridan Decl. ¶ 6.) 4 Hiscox/Starr fails to acknowledge the distinct dispute resolution provisions found 5 in the Non-Party Insurers’ policies and Defendants’ Policies. (See generally MTR; 6 Reply.) Rather, Hiscox/Starr summarily asserts that, because the Non-Party Insurers’ 7 policies follow form to the Lex-London Policy, “the treatment of one policy is relevant to 8 the others.” (Reply at 2.) That statement paints with too broad a brush. As the court has 9 acknowledged, the XL Catlin Action may have some bearing on Weyerhaeuser’s 10 summary judgment motion—but only because, like the Policies, the XL Catlin policy 11 both follows form to the Lex-London Policy and contains the NMA 1998 Endorsement. 12 (See 6/18/19 Order (Dkt. # 84) at 7.) Absent that identity of language, the court would 13 have no reason to consider the outcome of foreign proceedings involving non-parties. In 14 short, Hiscox/Starr fails to show that the subject of its requested additional briefing is 15 relevant to any question before the court.3 The court thus DENIES Hiscox/Starr’s motion 16 to reopen summary judgment briefing. 17 // 18 // 19 20 21 22 In its reply, Hiscox/Starr discusses at length “the leading English case of Ace Capital Ltd. and [O]thers v. CMS Energy Corporation.” (Reply at 3-5; see also Crow Decl. ¶ 2, Ex. 1.) Hiscox/Starr alleges only that XL Catlin “relied on” the Ace Capital case in the XL Catlin Action. (Reply at 3.) To the extent Hiscox/Starr believes Ace Capital is relevant to the issues before the court, it should have discussed the case in its supplemental briefing on the XL Catlin Action. 3 ORDER - 6 1 2 IV. CONCLUSION For the foregoing reasons, the court DENIES Hiscox/Starr’s motion to reopen 3 summary judgment briefing. (Dkt. # 79.) 4 Dated this 25th day of June, 2019. 5 6 A 7 The Honorable James L. Robart U.S. District Court Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
