Unpublished Dispositionboard of Governors of Wayne State University,plaintiff-appellee, Cross-appellant, v. Federal Insurance Company, Defendant-appellant, Cross-appellee, 884 F.2d 578 (6th Cir. 1989)

ORDER

At oral argument in this case on August 10, 1989, the panel sua sponte raised two issues concerning subject matter jurisdiction; viz., (1) whether or not this action was brought upon a "contract of liability insurance" which would be precluded under 28 U.S.C. § 1332(c), and (2) whether or not the plaintiff-appellee is an arm or alter ego of the State of Michigan. The parties were afforded an opportunity to file supplemental briefs, and they have now been received and reviewed.

We note that the defendant-appellant makes no argument in its supplemental brief regarding "liability insurance" under section 1332(c), apparently recognizing that a suretyship or performance bond arrangement such as present in this case cannot be equated with liability insurance. However, a review of the parties' briefs with regard to issue (1) clearly indicates that both factual and legal issues exist concerning whether or not Wayne State University is an arm or alter ego of the State of Michigan. These factual and legal issues should be determined by the district court. Accordingly, it is ORDERED that this cause be, and it hereby is, REMANDED to the district court for determination of whether or not subject matter jurisdiction exists in this case.