Williamson Farm v. Diversified Crop Ins. Servs.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-1463

WILLIAMSON FARM,

Plaintiff - Appellant,

v.

DIVERSIFIED CROP INSURANCE SERVICES, a/k/a CGB Diversified
Services, Inc.,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:17-cv-00513-D; 5:16-mc-00018-D)

Argued: December 13, 2018 Decided: February 27, 2019

Before KEENAN, FLOYD, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge
Keenan and Judge Floyd joined.

ARGUED: Matthew William Buckmiller, STUBBS & PERDUE, P.A., Raleigh, North
Carolina, for Appellant. Roy Jefferson Allen, HUNT ROSS & ALLEN, Clarksdale,
Mississippi, for Appellee. ON BRIEF: Derek M. Crump, BROWN, CRUMP,
VANORE & TIERNEY, L.L.P., Raleigh, North Carolina, for Appellee.
THACKER, Circuit Judge:

In this case, Williamson Farm (“Appellant”) challenges the district court’s

decision to vacate an arbitration award that Appellant won against Diversified Crop

Insurance (“Appellee”), a private insurance company that sold federal crop insurance

policies to Appellant. Appellant asserts that the district court erred in denying its motion

to confirm the arbitration award and granting Appellee’s motion to vacate on the basis

that the arbitrator exceeded her powers.

Despite the strong presumption in favor of confirming arbitration awards pursuant

to the Federal Arbitration Act (“FAA”), we hold that Appellee met its heavy burden to

prove that the arbitrator exceeded her powers by awarding extra-contractual damages,

contrary to both the policy and binding authority from the Federal Crop Insurance

Corporation (“FCIC”). Therefore, we affirm.

I.

A.

Background on the Federal Crop Insurance Program

The policies at issue in this case are federal crop insurance policies, which

Appellee sold pursuant to the Federal Crop Insurance Act (“FCIA”), 7 U.S.C. §§ 1501–

1524, 1531, and accompanying regulations issued by the FCIC. These policies are not

typical private insurance agreements, so a brief discussion of the federal government’s

role in crop insurance agreements is necessary.

The federal crop insurance program provides farmers and agricultural entities in

the United States with crop insurance protection, a venture that was considered too risky

2
for traditional private insurers when the FCIA was enacted in 1938. As the Supreme

Court explained, “the Government engaged in crop insurance as a pioneer. Private

insurance companies apparently deemed all-risk crop insurance too great a commercial

hazard.” Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 383 n.1 (1947).

To provide this protection to farmers, the FCIA established the FCIC, a

government corporation within the United States Department of Agriculture’s Risk

Management Agency that administers the federal crop insurance program. 7 U.S.C.

§ 1503. The FCIC does not directly issue crop insurance policies to farmers. Instead, it

relies on “approved insurance providers” 1 -- private insurers such as Appellee -- to issue

federal crop insurance policies to farmers like Appellant. 7 U.S.C. § 1502(b)(2). Then,

when certain eligibility conditions are met, the FCIC reinsures the approved insurance

providers’ losses and reimburses their administrative and operating costs.

In order to qualify for reinsurance through the FCIC, approved insurance providers

must comply with the FCIA and the accompanying regulations issued by the FCIC

governing the sale, issuance, and servicing of federal crop insurance policies. 7 C.F.R.

§ 400.168; see also Felder v. Fed. Crop Ins. Corp., 146 F.2d 638, 640 (4th Cir. 1944);

Davis v. Producers Agric. Ins. Co., 762 F.3d 1276, 1284 (11th Cir. 2014). Accordingly,

“even though the crop insurance policy is between the farmer and an approved insurance

1
Pursuant to the FCIA, “[t]he term ‘approved insurance provider’ means a private
insurance provider that has been approved by the [FCIC] to provide insurance coverage
to producers participating in the Federal crop insurance program established under this
subchapter.” 7 U.S.C. § 1502(b)(2).

3
provider,” the FCIA “establishes the terms and conditions of insurance.” Davis, 762 F.3d

at 1284 (citation omitted).

Indeed, all approved insurance providers issue a uniform policy drafted by the

FCIC known as the “Common Crop Insurance Policy,” the text for which is provided at 7

C.F.R. § 457.8. Both policies at issue in this case mirrored the Common Crop Insurance

Policy. Additionally, the FCIC sets premium rates for each county and crop insured,

subsidizes and receives premiums, and pays claims. In short, the FCIC is extensively

involved in and exerts control over all aspects of the federal crop insurance program.

The Farm Service Agency (“FSA”), another agency within the Department of

Agriculture, works with the Risk Management Agency and the FCIC to implement the

federal crop insurance program through FSA’s network of state and county field offices.

As relevant to this case, insureds and approved insurance providers are required to submit

program eligibility, acreage reporting, and other necessary forms to their local FSA office

in order to receive federal crop insurance coverage through the FCIC.

B.

Appellant’s Underlying Policy Claims

This case centers on two policies issued by Appellee to insure Appellant’s 2013

crops: (1) the Richmond County Policy; and (2) the Montgomery County Policy. Under

4
the Richmond County Policy, Appellee listed Farm Number 2172. 2 Under the

Montgomery County Policy, Appellee listed Farm Numbers 1870 and 4168.

For many years, Appellant purchased its crop insurance through insurance agent

Lynn Saintsing, until Saintsing sold his agency to Appellee in 2012. 3 During his time as

Appellant’s insurance agent, Saintsing’s regular practice was to help Appellant complete

the necessary forms and submit them to the proper FSA office to insure Appellant’s

farms.

It was not unusual for a farm located in one county to be administered by an FSA

office in another county, based on the owner’s preferences or if the farm’s county did not

have an FSA office. Such was the case with Appellant’s Farm 2172, which was located

in Montgomery County. In 1996, the Montgomery County FSA office closed, and

administration of Farm 2172 shifted to Richmond County. Accordingly, since 1996,

Farm 2172 had been listed on forms filed with the FSA office in Richmond County even

though it was located in Montgomery County. Saintsing was aware of this, since he

helped Appellant fill out the forms and prepare maps of the farms.

2
Farm numbers, which are assigned by the FSA, identify an insured’s farms and
are used in connection with federal crop insurance policies and FSA forms.
3
It is not clear from the record how many years Appellant purchased its crop
insurance through Saintsing, but Appellant’s brief notes that it has farmed on this
property “for decades” and purchased its crop insurance through Saintsing “[d]uring
much of this time.” Appellant’s Br. 3.

5
 Prior to Appellee’s acquisition of Saintsing’s insurance agency, Saintsing issued

Appellant a single policy that covered all of Appellant’s crops regardless of the county in

which the farm was located.

1.

Crop Loss Claim: Farm 2172

The trouble began for Appellant after Saintsing sold his business to Appellee in

2012. Unlike the single policy previously issued by Saintsing, Appellee issued Appellant

separate policies for each county in which a farm was geographically located, regardless

of where the farm was administered. Saintsing -- then an agent for Appellee -- helped

Appellant prepare the necessary forms to be submitted to the FSA. But on those forms,

Saintsing listed Farm 2172 on the Richmond County Policy (where it was administered),

rather than the Montgomery County Policy (where it was geographically located).

In 2013, Appellant experienced crop loss due to deer on Farm 2172 and expected

this loss to be covered under its crop insurance policy. Therefore, Appellant filed a claim

for the loss with Appellee. However, Appellee denied the claim “on the technicality that

Farm 2172, located in Montgomery County, was listed on [forms] filed with the FSA in

Richmond County and was therefore listed on the wrong policy.” J.A. 13. 4 As noted,

Saintsing had assisted Appellant in completing these forms and facilitated their filing

with the FSA.

4
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.

6
 2.

Prevented Planting Claim: Farms 1870 and 4168

Appellant also seeks recovery for a prevented planting claim 5 under the

Montgomery County Policy. The summer of 2013 was excessively rainy. As a result,

Appellant was unable to plant on Farms 1870 and 4168.

During the period that Appellant was unable to plant, another of Appellee’s

agents, Jason Nifong, visited Appellant’s farmland to aid Appellant in preparing its FSA

forms. During this visit, Nifong advised Appellant that it could file a prevented planting

claim as a result of the rainy weather. Following Nifong’s visit, Appellant chose to file a

prevented planting claim and did not attempt to plant on these farms.

However, in preparing the FSA forms, Nifong failed to note the prevented planting

acres on the correct form, and he did not explain to Appellant that failure to report the

acres on that specific form would bar the prevented planting claim. Ultimately, Appellee

denied Appellant’s claim based on this failure to report.

C.

Arbitration

Appellant sought arbitration pursuant to Section 20(a) of the policy based on

Appellee’s denials of its crop loss and prevented planting claims. See J.A. 207, § 20(a)

5
When certain requirements are met, a prevented planting claim allows a
policyholder to recover when an insured cause of loss that is general to the surrounding
area, such as excessive rain, prevents the policyholder (as well as other producers in the
area) from planting crops on eligible acres.

7
(“If you and we fail to agree on any determination made by us . . . the disagreement must

be resolved through arbitration . . . .”).

1.

Crop Loss Claim: Farm 2172

As to Appellant’s crop loss claim for Farm 2172, the arbitrator determined, “[t]he

lack of coverage for Farm 2172 indisputably arose from [Appellee’s] decision to issue

county by county policies and its failure, and that of its agents who knew where these

farms were actually located . . . , to correctly list the farms for crop insurance purposes.”

J.A. 14. The arbitrator continued, “I conclude that [Appellee] failed to comply with the

terms of [the policy] and that failure resulted in the loss to [Appellant]. [Appellee] left

[Appellant] effectively uninsured for crop year 2013 as to Farm 2172.” Id. The

arbitrator further concluded that Appellee engaged in negligence, breach of fiduciary

duty, and constructive fraud. As a result, she awarded Appellant $97,692.39 for

Appellee’s “breach of [the policy] and the failure to pay the claim,” damages which she

trebled because she concluded that Appellee violated the North Carolina Unfair and

Deceptive Trade Practices Act. Id. Lastly, finding that Appellee failed to attempt to

reasonably settle the claim, the arbitrator awarded Appellant $54,368.87 in attorneys’

fees pursuant to North Carolina law.

2.

Prevented Planting Claim: Farms 1870 and 4168

As for Appellant’s prevented planting claim for Farms 1870 and 4168, the

arbitrator similarly determined that Appellee’s agent was at fault for failing to report the

8
acres on the correct FSA form, and that Appellee’s “actions or lack of action left

[Appellant] effectively uninsured for crop year 2013 as to Farms [1870] 6 and 4168.” J.A.

15. Accordingly, the arbitrator concluded, “I award the amount of $77,668.59 to

[Appellant] for the breach of [the policy] and the failure to pay the claim. I also conclude

that [Appellee] engaged in negligence, breach of fiduciary duty and constructive fraud.”

Id. As with the crop loss claim for Farm 2172, the arbitrator trebled damages pursuant to

the North Carolina Unfair and Deceptive Trade Practices Act and awarded Appellant

$44,483.63 in attorneys’ fees pursuant to North Carolina law.

3.

Arbitration Award

After all was said and done, the total arbitration award to Appellant was

$97,692.39 for the crop loss claim for Farm 2172 and $77,668.59 for the prevented

planting claim for Farms 1870 and 4168 (both of which were to be trebled), $98,852.50

in attorneys’ fees, and $14,994 in reimbursement for arbitration costs and fees.

According to Appellant, this amounted to a total arbitration award of $639,929.44.

D.

District Court’s Decision

On May 12, 2016, Appellant filed a motion to confirm the arbitration award in the

United States District Court for the Eastern District of North Carolina. And, on June 29,

6
The arbitrator’s decision occasionally refers to Farm 1870 as Farm 1872 or 1879.
Based on the record, these references appear to be in error.

9
2016, Appellee filed a competing motion to vacate the arbitration award, asserting that

the arbitrator exceeded her authority. Additionally, Appellee argued that Appellant failed

to obtain a determination from the FCIC that Appellee failed to comply with the

insurance policies or FCIC procedures, which it asserted was a prerequisite for the district

court to confirm the award.

On July 12, 2016, the district court requested an amicus brief from the FCIC

addressing whether the arbitrator exceeded her authority and whether Appellant was

required to obtain an FCIC determination before the district court could confirm the

arbitration award. The FCIC filed its amicus brief on August 24, 2016, taking the

position that the arbitrator exceeded her authority by (1) awarding contractual damages

not covered by any policy; (2) awarding extra-contractual damages and attorneys’ fees;

(3) failing to obtain and follow binding FCIC interpretations, issued in the form of Final

Agency Determinations (“FADs”); and (4) failing to obtain an FCIC determination prior

to any extra-contractual damages or attorneys’ fees being awarded during judicial review.

On March 26, 2018, the district court granted Appellee’s motion to vacate and

denied Appellant’s motion to confirm the arbitration award, concluding that the arbitrator

exceeded her powers by (1) impermissibly interpreting the policy rather than obtaining an

interpretation from the FCIC; and (2) awarding extra-contractual damages. Appellant

timely appealed on April 25, 2018.

10
 II.

We review the district court’s legal rulings regarding confirmation or vacation of

an arbitration award de novo and the district court’s factual findings, if any, for clear

error. Norfolk S. Ry. Co. v. Sprint Commc’ns Co., 883 F.3d 417, 422 (4th Cir. 2018).

Pursuant to the FAA, “any judicial review of an arbitration award must be an

extremely narrow exercise.” Long John Silver’s Restaurants, Inc. v. Cole, 514 F.3d 345,

351 (4th Cir. 2008). There is a strong presumption in favor of confirming arbitration

awards under the FAA, and any party seeking to overturn an arbitration award faces a

“heavy burden.” Three S Del., Inc. v. DataQuick Info. Sys., Inc., 492 F.3d 520, 527 (4th

Cir. 2007). As we have stated, “in reviewing such an award, ‘a district or appellate court

is limited to determin[ing] whether the arbitrators did the job they were told to do -- not

whether they did it well, or correctly, or reasonably, but simply whether they did it.’” Id.

(quoting Remmey v. PaineWebber, Inc., 32 F.3d 143, 146 (4th Cir. 1994)). Indeed, “an

arbitration award is enforceable even if the award resulted from a misinterpretation of

law, faulty legal reasoning or erroneous legal conclusion.” Richmond, Fredericksburg &

Potomac R.R. Co. v. Transp. Commc’ns Int’l Union, 973 F.2d 276, 281 (4th Cir. 1992)

(internal quotation marks omitted).

The FAA provides that a court may only vacate an arbitration award on one of the

following grounds:

(1) where the award was procured by corruption, fraud, or
undue means;

(2) where there was evident partiality or corruption in the
arbitrators, or either of them;

11
 (3) where the arbitrators were guilty of misconduct in
refusing to postpone the hearing, upon sufficient cause
shown, or in refusing to hear evidence pertinent and material
to the controversy; or of any other misbehavior by which the
rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so
imperfectly executed them that a mutual, final, and definite
award upon the subject matter submitted was not made.

Three S Del., 492 F.3d at 527 (citing 9 U.S.C. § 10(a)). “The permissible common law

grounds for vacating such an award ‘include those circumstances where an award fails to

draw its essence from the contract, or the award evidences a manifest disregard of the

law.’” Id. (quoting Patten v. Signator Ins. Agency, Inc., 441 F.3d 230, 234 (4th Cir.

2006)).

III.

Appellant asserts that the district court erred in this case by vacating the arbitration

award. Appellant argues that the arbitrator did not exceed her powers by awarding extra-

contractual damages and attorneys’ fees. In the alternative, Appellant argues that even if

the arbitrator exceeded her powers in part, we should nevertheless confirm the arbitration

award of contract damages, which were within the arbitrator’s authority to award

pursuant to the policy. We address each argument in turn.

A.

Extra-Contractual Damages

The district court vacated the arbitration award after determining that the arbitrator

exceeded her powers by awarding prohibited extra-contractual damages and attorneys’

12
fees. Appellant asserts that the arbitrator acted within her authority in rendering the

award because the arbitrator concluded that Appellee breached the policy, and it was

within her power to award extra-contractual damages.

1.

Policy Interpretation

We turn first to whether the policy unambiguously prohibits the arbitrator from

awarding extra-contractual damages. In arguing that it does, Appellee relies primarily on

Sections 20(h) and 20(i) of the policy. These provisions state as follows:

(h) Except as provided in section 20(i), no award or
settlement in mediation, arbitration, appeal, administrative
review or reconsideration process or judicial review can
exceed the amount of liability established or which should
have been established under the policy, except for interest
awarded in accordance with section 26.

(i) In a judicial review only, you may recover attorneys fees
or other expenses, or any punitive, compensatory or any other
damages from us only if you obtain a determination from
FCIC that we, our agent or loss adjuster failed to comply with
the terms of this policy or procedures issued by FCIC and
such failure resulted in you receiving a payment in an amount
that is less than the amount to which you were entitled.

J.A. 209, § 20(h)–(i) (emphases supplied).

Appellee argues that these provisions unambiguously state that the arbitrator

cannot award extra-contractual damages, and such damages may only be awarded by a

court upon judicial review and after obtaining an FCIC determination that the agent or

loss adjuster failed to comply with the terms of the policy. Making the same argument in

its amicus brief submitted before the district court, the FCIC explained:

13
 According to the clear language of the policy, any extra-
contractual damages, including damages arising from state
claims, were only available after this Court was asked to
review the arbitrator’s award. See 7 C.F.R. § 457.8, ¶ 20(i).
As noted by FCIC, any extra-contractual claims (i.e.
negligence, breach of fiduciary duty, constructive fraud,
unfair and deceptive practices) and attorneys’ fees are limited
solely to instances where FCIC has determined the insurance
provider violated its policies and procedures and such
violation had a monetary impact on the payment of the claim.
See FCIC Response to Comments, 69 Fed. Reg. 48652-01,
48717 (Aug. 10, 2004). Thus, the plain and unambiguous
terms of section 20(i) of the policy (7 C.F.R. § 457.8, ¶ 20(i)),
together with the plain and unambiguous language of 7
C.F.R. § 400.176(b) and 7 C.F.R. § 400.352(b)(4),
unequivocally dictate that a party can only be awarded extra-
contractual damages and attorneys’ fees upon petitioning this
Court for review of the arbitrator’s award and then only after
obtaining a determination from FCIC.

J.A. 232–33.

In rendering the award, however, the arbitrator interpreted these provisions

differently. The arbitrator concluded:

Section 20(i) does not in fact state that the arbitrator may
not award attorneys’ fees or punitive, compensatory or other
damages. Instead it appears to impose a type of condition
precedent to the ultimate enforceability of such an award by a
court. Moreover, if the provision has the effect [Appellee]
claimed, the arbitrator would have little jurisdiction to decide
anything. That plainly cannot be the case. Notably, the
Policies are silent on timing, such that the condition precedent
of FCIC determination could be satisfied post-award but prior
to enforcement in court.

In addition, Section 20(h) does not expressly exclude any
theories of liability (such as fraud) or types of damages;
instead it says that no award can exceed the amount of
liability established under the policy. It does not expressly
exculpate insurers from their improper conduct such as fraud

14
 or breach of fiduciary duty, conduct that can trigger liability
beyond liability for breach of contract.

J.A. 10.

But it does not matter if these policy provisions are as unambiguous as Appellee

(and the FCIC) claims or if the arbitrator’s alternative interpretation is reasonable. This

is because even under the arbitrator’s explanation, these provisions are ambiguous at best.

As the policy makes clear, the arbitrator was required to obtain and apply the FCIC’s

interpretation of any ambiguous policy provision, and the arbitrator could not substitute

her own interpretation for that of the FCIC.

As the district court correctly pointed out, “[i]n cases involving federally reinsured

crop insurance, the insurance contract forms only one part of the agreement between the

parties. The statutes and regulations associated with the federal crop insurance scheme

also limit the arbitrator’s authority.” J.A. 271 (citing Davis v. Producers Agric. Ins. Co.,

762 F.3d 1276, 1284–85 (11th Cir. 2014)). Significantly, Section 20(a)(1) of the policy -

- the very same section that provides for arbitration -- states that if there is a dispute that

“in any way involves a policy or procedure interpretation,” the parties “must obtain an

interpretation from FCIC.” J.A. 208, § 20(a)(1) (emphasis supplied). The FCIC’s FADs

are “binding on all participants in the Federal crop insurance program,” including

arbitrators. 7 C.F.R. § 400.765(c); see also J.A. 208, § 20(a)(1)(i) (“Any interpretation

by FCIC will be binding in any mediation or arbitration.”). Therefore, the failure to

obtain a required FCIC interpretation “will result in the nullification of any agreement or

15
award.” J.A. 208, § 20(a)(1)(ii). In short, both the policy and FCIC regulations provide

that only the FCIC -- and not the arbitrator -- may interpret the policy.

In rendering the award here, the arbitrator pushed back against this restriction by

noting that if the arbitrator could not interpret the meaning of policy provisions, “the

arbitrator would have little jurisdiction to decide anything.” J.A. 10. Indeed, the unusual

world of federal crop insurance does, in fact, appear to leave very little decision making

authority to the arbitrator. But as counsel for Appellee stated during oral argument in this

case, crop insurance “takes everything you know about insurance and turns it on its

head.” Oral Argument at 19:40–49, Williamson Farm v. Diversified Crop Ins. Servs.,

Inc., No. 18-1463 (4th Cir. Dec. 13, 2018), http://www.ca4.uscourts.gov/oral-

argument/listen-to-oral-arguments (hereinafter “Oral Argument”).

2.

The Distinction Between FCIC Interpretations and FCIC Determinations

In response to Appellee’s argument that the arbitrator was required to obtain an

FCIC interpretation of disputed policy provisions, Appellant asserts, “if an FCIC

determination is required before an arbitrator can award monies then the arbitration

process is a complete waste of time with no meaning.” Appellant’s Br. 24. Appellant

further asserts that, in any event, it did, in fact, seek an FCIC determination and was told

that the FCIC would not render an opinion until after arbitration.

In both arguments, Appellant conflates the obligation to obtain an FCIC

interpretation of disputed provisions of the policy pursuant to Section 20(a)(1) -- a

requirement in any arbitration where the meaning or application of policy provisions are

16
at issue -- with the requirement to obtain an FCIC determination that there was a failure

to comply with the terms of the policy prior to obtaining attorneys’ fees or extra-

contractual damages during judicial review pursuant to Section 20(i). FCIC

interpretations and FCIC determinations, as these terms are described in the policy, are

not the same thing.

a.

When an FCIC Determination is Required

As to Appellant’s first argument, an FCIC determination that there was a failure to

comply with the terms of the policy is not required “before an arbitrator can award

monies.” Appellant’s Br. 24. Pursuant to Section 20(i) of the policy, such

determinations are only required (1) during judicial review (after arbitration is

completed); and (2) only when an insured is seeking extra-contractual damages. As

discussed below, binding FCIC FADs make clear that arbitrators cannot award extra-

contractual damages; accordingly, arbitrators do not require such an FCIC determination

in order to render their award. 7 Arbitrators do, however, require an FCIC interpretation

before rendering an award based on disputed policy language.

7
In its reply brief, Appellant offers a similar argument that Appellee’s
interpretation of 7 C.F.R. § 400.352 -- which preempts state and local laws and
regulations except where the FCIC makes a determination that the agent or loss adjuster
failed to comply with the policy -- “would bar recovery of any damages without an FCIC
determination,” including compensatory damages. Appellant’s Reply Br. 2. Because the
FCIC has established that arbitrators cannot award damages based on state law claims
and FCIC determinations are only required during judicial review involving extra-
contractual damages, this argument is irrelevant as to the arbitration award.

17
 b.

Appellant Requested an FCIC Determination, Not an FCIC Interpretation

As to Appellant’s second argument, Appellant did not request an FCIC

interpretation -- it requested an FCIC determination. Again, an FCIC interpretation of

the meaning of disputed policy provisions is a different request -- one which arises at a

different time and in a different proceeding -- than an FCIC determination that an agent

failed to comply with the terms of the policy. To comply with Section 20(a)(1) of the

policy, what Appellant (or the arbitrator) needed to request during the arbitration, but did

not, was an FCIC interpretation of the meaning of the disputed policy provisions.

Appellant’s premature request for an FCIC determination that there was a failure to

comply with the terms of the policy, pursuant to Section 20(i), is of no consequence to

the arbitration award. 8

The arbitrator’s explanation as to what specific policy provisions mean

(particularly to the extent they were disputed issues in the arbitration) can only be viewed

as her interpretation of the policy. See, e.g., J.A. 10 (“Section 20(i) does not in fact state

that the arbitrator may not award attorneys’ fees or punitive, compensatory or other

damages. Instead it appears to impose a type of condition precedent to the ultimate

8
We note that our decision in this case does not address whether a claimant could
recover purely tort damages against a private insurance company without such an FCIC
determination where misrepresentations or negligence on the part of the insurance agent
before the policy was issued left the claimant effectively uninsured under the federal crop
insurance program. Here, Appellant sought contractual damages and participated in
arbitration pursuant to the insurance policy.

18
enforceability of such an award by a court. Moreover, if the provision has the effect

[Appellee] claimed, the arbitrator would have little jurisdiction to decide anything. That

plainly cannot be the case.”). By not obtaining an FCIC interpretation to resolve the

issue but instead interpreting the provisions herself, which was not in her authority to do,

the arbitrator exceeded her powers.

3.

Binding FCIC Authority

The arbitrator was obligated to follow any FADs previously issued by the FCIC.

See J.A. 208, § 20(a)(1)(i), (iii) (“Any interpretation by FCIC will be binding in any

mediation or arbitration . . . . An interpretation by FCIC of a policy provision is

considered a determination that is a matter of general applicability.” (emphasis

supplied)). And the FCIC has addressed whether arbitrators may award extra-contractual

damages more than once already. Each time, the FCIC has made clear that arbitrators do

not have the authority to award such damages. Rather, extra-contractual damages and

attorneys’ fees may only be awarded by the court reviewing an arbitrator’s decision. For

instance, Appellant does not dispute that FAD-193, issued on October 21, 2013, states in

relevant part:

[T]he reference to “judicial review only” [in Section 20(i)] is
to clarify that such [extra-contractual] damages can only be
sought during an appeal to the Courts, after an FCIC
determination has been obtained, and cannot be awarded in
arbitration. To obtain a determination that will enable the
insured to recoup attorney[s’] fees, expenses, or damages
from the [approved insurance provider], the insured must
send a request for determination to the [Risk Management

19
 Agency] Deputy Administrator of Compliance after the
insured has filed an appeal for judicial review.

J.A. 240 (emphasis supplied); Appellee’s Br. 12.

Prior to this, the FCIC also addressed the issue of extra-contractual damages in

FAD-99, issued on May 4, 2009, which states, in relevant part, “it is only in a judicial

review that producers can recover attorneys’ fees or other expenses, or any punitive,

compensatory or any other damages from insurance providers.” J.A. 241.

Pursuant to Section 20(a)(1)(i) of the policy, these previously issued FADs -- and

the conclusion that arbitrators cannot award extra-contractual damages pursuant to

Section 20(i) -- were binding upon the arbitrator in this case.

4.

The Arbitrator Exceeded Her Powers

Accordingly, the arbitrator exceeded her powers by both (1) interpreting the policy

herself without obtaining an FCIC interpretation for the disputed policy provisions; and

(2) awarding extra-contractual damages, which the FCIC has conclusively stated in

multiple FADs cannot be awarded in arbitration and can only be sought through judicial

review. Thus, Appellee met “the heavy burden” to vacate an arbitration award pursuant

to the FAA. MCI Constructors, LLC v. City of Greensboro, 610 F.3d 849, 857 (4th Cir.

2010); see also 9 U.S.C. § 10(a)(4).

20
 B.

Contractual Damages

In the alternative, Appellant argues that even if the arbitrator exceeded her powers

by awarding extra-contractual damages and attorneys’ fees, we should nevertheless

confirm the arbitration award in part based on contract damages, which were within the

arbitrator’s authority to award pursuant to Section 20 of the policy.

Assuming that the arbitrator also awarded contractual damages, 9 it is impossible to

tell from the arbitration award what amount may have stemmed from contractual

damages and what amount was extra-contractual. For example, in the award as to

Appellant’s crop loss claim for Farm 2172, the arbitrator stated:

The lack of coverage for Farm 2172 indisputably arose
from [Appellee’s conduct] . . . . The failure of [Appellee] to
properly handle this and advise [Appellant] breached
[Appellee’s] fiduciary duty to [Appellant.]

I conclude that [Appellee] failed to comply with the terms
of [the policy] and that failure resulted in the loss to
[Appellant.] [Appellee] left [Appellant] effectively uninsured
for crop year 2013 as to Farm 2172. Accordingly, I award the
amount of $97,692.39 to [Appellant] for the breach of [the
policy] and the failure to pay the claim. I conclude that
[Appellee] engaged in negligence, breach of fiduciary duty
and constructive fraud.

In addition, [Appellant] has established that [Appellee]
owed duties distinct and separate from the duties it owed
under the parties’ contracts; further, [Appellant] has

9
Notably, the arbitrator concluded that Appellee “left [Appellant] effectively
uninsured for crop year 2013,” J.A. 14, 15, which calls into question how Appellee could
breach a contract that did not exist.

21
 established that [Appellee’s] breach of those duties was
aggravated by several factors. Accordingly, I conclude that
[Appellee] engaged in unfair and deceptive practices in or
affecting commerce . . . . The facts show recklessness and
wanton disregard by [Appellee], i.e., more than a mere breach
of contract, warranting an award of treble damages under
[North Carolina state law.]

J.A. 14.

Although the arbitrator concluded that Appellee breached the contract, the

arbitrator also found Appellee liable for extra-contractual damages, including negligence

and breach of fiduciary duty. Since the arbitrator only provided a single amount of

damages rather than a breakdown of the award by contract and noncontract claims, we

have no way to distinguish what amount the arbitrator may have awarded for contractual

damages (which were within the arbitrator’s authority to award) and what amount the

arbitrator awarded for extra-contractual damages (which, for the reasons explained above,

the arbitrator exceeded her authority in awarding).

Of note, there is no support in the record for Appellant’s assertion at oral argument

that the arbitrator awarded $97,692.39 in contract damages for the crop loss claim while

extra-contractual damages were awarded in the form of trebled damages and attorneys’

fees. See Oral Argument at 14:51–16:04. To the contrary, the structure of the arbitration

award suggests that the arbitrator intended the award of trebled damages based on

Appellee’s “recklessness and wanton disregard” to be in addition to the contractual and

extra-contractual damages awarded for breach of contract, negligence, breach of fiduciary

duty, and constructive fraud. J.A. 14 (“I conclude that [Appellee] engaged in negligence,

breach of fiduciary duty and constructive fraud. In addition, . . . [t]he facts show

22
recklessness and wanton disregard by [Appellee.]” (emphasis supplied)). The same is true

regarding the arbitration award for Appellant’s prevented planting claim for Farms 1870

and 4168. See J.A. 15 (“I also conclude that [Appellant] has engaged in negligence,

breach of fiduciary duty and constructive fraud. In addition, as to Farms [1870] and

4168, . . . [t]he facts show recklessness and wanton disregard by [Appellant.]” (emphasis

supplied)).

Accordingly, even to the extent the arbitrator awarded damages for breach of

contract on either policy (as opposed to extra-contractual damages), the entire award

must be vacated.

IV.

For these reasons, the judgment of the district court is

AFFIRMED.

23