United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2203
___________
Continental Holdings, Inc., Successor *
Continental Can Company, Inc., *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Crown Holdings Incorporated; Crown *
Cork & Seal Company; Crown *
Beverage Packaging, Inc., *
*
Defendants - Appellees. *
___________
Submitted: January 11, 2012
Filed: March 5, 2012
___________
Before BYE, SMITH, and COLLOTON, Circuit Judges.
___________
BYE, Circuit Judge.
Continental Holdings, Inc. ("Continental") sold its food and beverage metal can
and can-end technology business to Crown Holdings, Inc. ("Crown") via a stock
purchase agreement ("SPA") in March 1990. The parties disputed the extent of each
other's resultant liabilities, as defined by section 10.3(a)(iv) of the SPA—the
indemnity provision—in concurrent binding arbitration and judicial proceedings.
After the arbitrator issued a decision interpreting the provision at issue, the district
court granted summary judgment in favor of Crown on issue preclusion grounds,
dismissed Continental's claims, and denied Continental's motion for reconsideration
and motion to alter or amend the judgment. Continental appeals. We affirm in part,
reverse in part, and remand for further proceedings.
I
By the 1980s, Continental had become a large, diversified, international
conglomerate. It owned a number of companies related to producing metal cans for
the food and beverage industry—its "core" business—as well as many other non-
related businesses. Around that time, Continental decided to reduce assets and exit
the metal can business. It began by selling off many of its non-core assets, i.e., assets
not related to the metal can business, including paper plants and mills, glass bottling
plants, and financial firms. Continental then sold its remaining core, metal can
business to Crown in 1990. Continental claims the purpose of the sale was to exit the
food and beverage packaging industry altogether. Notably, this sale was structured
as a stock sale, not an asset sale. Continental further claims it purposefully structured
the sale as such so as to allow it to transfer to Crown all assets, as well as liabilities,
related to the metal can business.
The parties agree the SPA clearly defines some of their respective liabilities.
For example, Continental agreed to retain liability related to an ERISA class action,
as well as 50% of known environmental liabilities associated with metal can plants
which were active at the time of the SPA. Continental also agreed to indemnify
Crown for any liabilities arising from businesses—past and existing—which may have
been associated with the stock transferred pursuant to the SPA, but were not related
to the metal can business. This would include liability for occupational exposure
claims made by employees who once worked at those unrelated plants. Continental
explains it needed to include this exception for unrelated businesses within the SPA
terms because, as a result of some asset sales and restructuring which occurred prior
to the stock sale, some of the liabilities for non-metal can businesses had been
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consolidated into Continental Beverage Packaging, Inc., one of the two companies
sold to Crown pursuant to the SPA. According to Continental, it structured the stock
sale so only liabilities associated with the metal can businesses would transfer to
Crown.
Yet, while some responsibilities are clear, the parties continue to argue over the
extent to which Continental agreed to indemnify Crown for other liabilities. To
resolve those disputes, the parties agreed to arbitrate the claims related to
environmental liabilities. Continental, however, chose to litigate the parties'
respective liability for former employees' occupational claims. The case before us on
appeal turns on the interplay between those two proceedings.
Regarding the environmental claims, the parties agree Section 10.3(a)(iii)1 of
the SPA requires Continental to indemnify Crown for 50% of all liabilities relating to
then-existing or known environmental issues associated with the assets sold as part
of the SPA. However, the parties disputed in arbitration whether Section 10.3(a)(iv)
of the SPA required Continental to indemnify Crown for environmental liabilities
associated with plants related to the metal can business, which were closed or
otherwise inactive at the time of the stock sale. Section 10.3(a)(iv) provides, in
relevant part, as follows: (a) Seller agrees to indemnify Buyer and its affiliates against
. . . (iv) all Liabilities relating to past or existing Businesses of the Companies and
Subsidiaries other than the Business . . . ." J.A. at 87. Specifically, the parties argued
over whether the phrase "other than the Business" modified "past or existing
Businesses," or simply "existing Businesses," not including the term "past." The
former interpretation, advanced by Continental, would mean Continental retained no
1
In relevant part, Section 10.3 of the SPA states the following: "(a) Seller
agrees to indemnify Buyer and its affiliates against and hold Buyer and its affiliates
. . . harmless from all Liabilities arising out of . . . (iii) 50% of all Liabilities arising
out of the matters described on schedule 3.16 . . . ("Environmental Liabilities") . . . ."
Schedule 3.16 contains a list of certain, known environmental liabilities. J.A. at 87.
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liability for past businesses (i.e., those closed or otherwise inactive at the time of the
SPA), or businesses existing at the time of the SPA, so long as the businesses were
related to metal can production. The latter interpretation, advanced by Crown, would
mean Continental retained liability for all past businesses—regardless whether they
related to metal can production—in addition to all businesses in existence at the time
of the SPA that did not relate to metal can production.
While arbitration was pending, the parties began arguing over their respective
liability for occupational hazards arising from plants which were inactive at the time
of the sale, but which were related to the metal can business. The parties' arbitration
agreement on environmental liabilities arguably did not encompass occupational
hazard claims. Continental chose to file suit in Douglas County, Nebraska, on
September 15, 2009, which Crown removed to federal court: this is the case which
is now before us on appeal. This diversity case similarly required the district court to
determine the extent of the parties' liability under the same provision of the SPA,
Section 10.3(a)(iv).
Shortly after Continental filed its occupational hazard lawsuit, Crown filed a
motion with the arbitrator. Crown requested a ruling that by seeking a potentially
binding judicial interpretation of the exact same clause—Section 10.3(a)(iv), which
was at the heart of the arbitration—Continental had violated Paragraph Four of the
Arbitration Agreement. Paragraph Four stated that the parties had agreed they would
not, during the pendency of the arbitration, prosecute or commence any suit or action
against the other party "relating to" any of the matters which are the subject of the
arbitration. While Continental admitted the interpretation of the indemnification
provision was relevant to both the Nebraska lawsuit and the arbitration, it argued the
parties had only agreed to arbitrate their environmental liabilities, and thus it was free
to file suit to determine the parties' occupational liabilities. The arbitrator agreed with
Continental and issued a written ruling on November 7, 2009. While the arbitrator
was concerned "his view of the dispute might allow for inconsistent adjudications of
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the meaning of Section 10.3(a)(iv) of the SPA, and agree[d] with Crown that
inconsistent adjudications are not appealing to litigants[,]" the arbitrator concluded
that the language of Paragraph Four of the Arbitration Agreement precluding litigation
of matters "related to" the arbitration was not sufficiently clear to deny Continental a
forum in which to bring its occupational hazard claims. Appellant's Mot. to Supp. R.,
Jan. 10, 2010, Ex. C at 6.
Shortly after the arbitrator issued his ruling, Crown filed a motion in district
court to stay the proceedings pending arbitration. In its motion, Crown explained the
"[a]rbitration involves a dispute concerning past and future environmental response
costs and defense costs arising out of . . . [the SPA] . . . and involves the interpretation
of Section 10 of the SPA." J.A. at 13. Furthermore, Crown informed the court that,
through arbitration, the parties were seeking "a determination of Continental's
indemnification responsibilities for third party claims, as well as a definitive
interpretation of Article 10 of the SPA." Id. at 14. Finally, Crown urged the district
court to stay the proceedings "[i]n light of the overlap of issues, . . . and the upcoming
Arbitration hearing that will address the very issue before this Court[, and] . . . to
avoid inconsistent adjudications and the burdensome and duplicative nature of dual
proceedings." Id.
Continental opposed Crown's motion, and urged the court not to stay the
proceedings. Continental warned the court arbitration may take too long in light of
the contentious relationship of the parties, and the additional document and discovery
requests pending. In support of its memorandum in opposition to the motion to stay,
Continental submitted a number of documents it had prepared and submitted to the
arbitrator in response to Crown's previous, similar motion. Continental argued, as it
had before the arbitrator, the parties had intended to limit the arbitration to resolution
of "environmental claims and defenses," which did not include the occupational
exposure claims then-pending before the district court. Evidence in Support of Opp.
to Def.'s Mot. to Stay, Ex. 4 at 6. Furthermore, Continental argued the underlying
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facts of each claim were sufficiently different to allow parallel proceedings. Id. at 7-
10. At the same time, Continental recognized the arbitration would require an
interpretation of Section 10.3(a)(iv). In a letter dated November 4, 2009, which
Continental submitted to the district court, Continental reiterated its position that "the
environmental claims and defenses at issue in [the] arbitration potentially trigger many
other provisions of the underlying Stock Purchase Agreement ("SPA"), including but
not limited to those relating to: . . . (k) Liability for plants disposed of prior to the
SPA under Section 10.3(a)(iv)." Pl.'s Evidence in Support of Opp. to Def.'s Mot. to
Stay, Ex. 5 at 2-3.
The court denied Crown's motion to stay the proceedings, stating "[t]he parties
no longer dispute that the claims in this litigation are non-arbitrable claims. After
reviewing the complaint and the parties' evidentiary submissions, the Court finds it is
not appropriate to stay this action pending the outcome of the parties' arbitration."
J.A. at 17.
A few weeks later, Continental submitted a letter to the arbitrator asking for
partial summary judgment on several key issues, and requesting "a legal interpretation
of these limited indemnities . . . based on the plain meaning of the language used by
the parties in the SPA . . . ." J.A. at 172. Specifically, Continental asked the arbitrator
to rule that Continental "did not agree to indemnify Crown for unknown liabilities
arising from 'Business' facilities sold prior to the Closing; accordingly, such liabilities
belong to Crown." Id. Continental argued to the arbitrator that, as a matter of law,
and pursuant only to the intrinsic language of the SPA, its proposed interpretation of
Section 10.3(a)(iv) was correct. It stated "it is clear that with respect to four key
issues the Transaction Documents [i.e., the SPA] are unambiguous and capable of a
plain meaning legal interpretation now, without need for a full evidentiary hearing."
Id. at 175. Further, Continental submitted that "[t]he meaning of the language of
Section 10.3(a)(iv) could not be plainer in reflecting the parties' intent that Continental
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was providing an indemnity only for 'past or existing businesses' that were not part of
the Business [i.e., the core metal can production Business]." Id. at 177.
After briefing by both parties and oral argument, the arbitrator issued a written
decision. In his decision, the arbitrator acknowledged both parties' interpretations
were "plausible," but rejected Continental's interpretation, denied its motion for
summary judgment, and entered an order adopting Crown's interpretation as a matter
of law. The arbitrator concluded the meaning of "the Business," as used in Section
10.3(a)(iv) of the SPA, "Indemnification by Seller," referred only to the active metal
can plants which were in existence and were transferred to Crown as part of the SPA.
Id. at 102. Specifically, the arbitrator held that "'existing businesses' is modified by
'other than the Business' and 'past businesses' is not." Id. Accordingly, the arbitrator
concluded Continental must indemnify Crown for any liabilities arising from metal
can plants which were inactive or closed at the time of the sale as Crown only
assumed liability for existing, active plants sold pursuant to the SPA.
Shortly after the arbitrator issued his opinion, Crown filed a motion for
summary judgment in the district court, arguing Continental was precluded from
further litigating the meaning of Section 10.3(a)(iv). The district court agreed with
Crown, and held that the arbitrator's decision bound it:
Although the JAMS Arbitration does involve a separate and distinct case
between the parties, relating to the issue of indemnity obligations for
certain environmental liabilities, the issue that was before [the arbitrator]
in determining the correct interpretation of Section 10.3(a)(iv) of the
SPA is the same issue that is now before this court. As the issue was
before [the arbitrator] upon Continental's own motion, Continental fully
briefed and orally argued the issue before [the arbitrator], and [the
arbitrator] correctly based his decision solely on the intrinsic evidence
(the language of the SPA) pursuant to New York contract law,2 this court
2
The parties agree New York law governs the interpretation of this contract.
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finds that Continental had a full and fair opportunity to litigate the issue
in the JAMS Arbitration. Thus, [the arbitrator's] interpretation of Section
10.3(s)(iv) of the SPA is binding on this Court, Continental is precluded
from relitigating the issue, and Crown's motion for summary judgment
will be granted.
Mem. Op. Granting Summ. J., Jan. 13, 2011, at 7-8; J.A. at 221-22.
Continental then filed a motion for reconsideration, or in the alternative, to alter
or amend the judgment, arguing that since the arbitrator found both interpretations to
be "plausible," the arbitrator must therefore have found the provision to be ambiguous,
and thus factual issues remained which should not have been resolved on summary
judgment. Pl.'s Br. in Supp. Mot. for Recons. or Alter or Am. J., Jan. 27, 2011, at 2-3;
J.A. at 232. The district court rejected Continental's argument the use of the word
"plausible" meant the arbitrator necessarily found the provision "ambiguous." Instead,
the court found that the arbitrator adequately explained why Crown's position was the
clear winner based on a reading of the entire SPA. Furthermore, because the
arbitrator's interpretation was "within the provisions of New York law[,]" it was
binding on the district court and under the doctrine of collateral estoppel, the district
court found it could not re-examine the issue. Accordingly, the district court denied
Continental's motion to reconsider its judgment.
In addition to denying the motion, however, the district court amended its
judgment to clarify Continental's responsibilities: "As [the arbitrator] found, plaintiff
must indemnify defendants for 50% of liabilities concerning the food and beverage
metal can business and the metal can and [can-end] technology of the Companies and
their Subsidiaries as they existed at the time of the SPA and which were sold pursuant
to the SPA." Mem. Op., May 2, 2011, at 10; J.A. at 240. On appeal, the parties agree
the court's language indicates Continental should be responsible not only for 50% of
all environmental liabilities (as described in Schedule 3.16), but also Continental must
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indemnify Crown for 50% of all liabilities associated with the active metal plants at
the time of the SPA.
Continental appeals the grant of summary judgment and the district court's
denial of its motion to reconsider or alter or amend its judgment.
II
"In reviewing the district court's grant of summary judgment, we review de
novo its conclusions of law, including the availability of issue preclusion." Liberty
Mut. Ins. Co. v. FAG Bearings Corp., 335 F.3d 752, 757 (8th Cir. 2003) (internal
citation omitted); see also Followell v. United States, 532 F.3d 707, 708 (8th Cir.
2008) (applying de novo review to the district court's dismissal of plaintiff's claim
with prejudice on res judicata and collateral estoppel grounds). "We look to state law
in determining whether to apply issue preclusion." Liberty Mut. Ins., 335 F.3d at 758.
The SPA in this case provides that New York law governs its interpretation. J.A. at
95, SPA § 11.6.
A decision regarding a motion for reconsideration is reviewed for abuse of
discretion. Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 721 (8th Cir. 2010). This
Court also reviews decisions on motions to alter or amend for abuse of discretion.
Anheuser-Busch, Inc. v. John Labatt Ltd., 89 F.3d 1339, 1349 (8th Cir. 1996).
Continental argues first that the district court incorrectly altered its judgment
to hold Continental liable for 50% of all liabilities associated with active plants sold
to Crown. Instead, Continental contends, the 50% indemnity clause, as it relates to
active plants which were sold to Crown pursuant to the SPA, only applies to
environmental liabilities, not all liabilities, which would include the occupational
exposure claims at issue in the judicial proceedings.
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In addition, Continental argues issue preclusion does not apply, and that we
should either enter judgment in its favor regarding the interpretation of Section
10.3(a)(iv), or alternatively, allow Continental to present extrinsic evidence to the
district court in support of its interpretation. Continental contends that because the
arbitration was limited to environmental claims, it has therefore not yet been afforded
a full and fair opportunity to litigate the interpretation of Section 10.3(a)(iv) as it
relates to occupational claims. Continental supports its argument by again claiming
that when the arbitrator recognized both parties' interpretations were "plausible," he
thereby concluded the indemnity provision was ambiguous. Because the language of
the provision is ambiguous, Continental argues, the parties should have been allowed
to present extrinsic evidence of their original intent. Continental then references a
number of affidavits it submitted to the district court in opposition to Crown's motion
for summary judgment. The evidence Continental attempted to present to the district
court, and now provides on appeal, supports its claim Crown assumed liability for
occupational exposure, worker's compensation, and pension claims—factual situations
not at issue in the arbitration.3 J.A. at 15. Continental explains it did not present such
extrinsic evidence to the arbitrator because the "arbitration was limited to
environmental claims." Appellant Br. at 13.
A. The 50% Indemnity Clause
Both parties agree the district court mistakenly clarified its previous summary
judgment order to state Continental should be liable for 50% of not only
environmental liabilities associated with active plants which were sold to Crown
pursuant to the SPA, but also of all liabilities associated with such plants. See
Appellee's Br. at 15-16 ("Crown agrees with Continental that Section 10.3(a)(iii) of
3
Continental also references Robert Julian's affidavit, who was the primary
negotiator for the sale of the Business to Crown, in which he explains the purpose of
the stock sale was to transfer all liability, for past and present business related to the
metal can production, to Crown.
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the SPA is limited to certain 'Environmental Liabilities' only, which are the subject of
the JAMS Arbitration. . . . Continental is not required to indemnify Crown for non-
environmental occupational exposure claims arising from food and beverage can
plants still active and sold to Crown as part of the SPA . . . .").
Continental asks this court to vacate and remand the district court's opinion to
the extent it makes this erroneous conclusion. Crown, however, argues no remand is
necessary since the parties' positions are clear and in agreement on the matter. Under
the Federal Rules of Civil Procedure, a district court's ruling should be reversed if the
error affects the substantial rights of a party. See Fed. R. Civ. P. 61; see also, e.g.,
Tyler v. White, 811 F.2d 1204, 1207 (8th Cir. 1987) (noting a reversible error is one
which affects the substantial rights of a party).
The district court's second order and opinion may affect Continental's financial
future because it indicates Continental must indemnify Crown for 50% of all liabilities
stemming from active plants sold to Crown. We find this possibility sufficient to
conclude the court's order affects Continental's substantial rights. Accordingly, we
vacate the district court's second Memorandum Opinion to the extent necessary to
correct this error, and remand with instructions to clarify that the 50% indemnity
provision only applies to environmental liabilities pursuant to Schedule 3.16, as
agreed to by the parties.
B. Issue Preclusion
Under New York law, "[i]t is settled that the doctrine of res judicata is
applicable to arbitration awards and may serve to bar the subsequent relitigation of a
single issue or an entire claim." Matter of Ranni's Claim, 58 N.Y.2d 715, 717 (N.Y.
1982). The collateral estoppel doctrine, i.e., issue preclusion, "applies only if the issue
in the second action is identical to an issue which was raised, necessarily decided and
material in the first action, and the plaintiff had a full and fair opportunity to litigate
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the issue in the earlier action." City of New York v. Welsbach Elec. Corp., 9 N.Y.3d
124, 128 (N.Y. 2007) (internal quotation marks and citation omitted). “The burden
rests upon the proponent of collateral estoppel to demonstrate the identicality and
decisiveness of the issue, while the burden rests upon the opponent to establish the
absence of a full and fair opportunity to litigate the issue in the prior action or
proceeding." Parker v. Blauvelt Volunteer Fire Co., Inc., 93 N.Y.2d 343, 349 (N.Y.
1999) (internal quotation marks and citation omitted). "[T]he fundamental inquiry is
whether re-litigation should be permitted in a particular case in light of what are often
competing policy considerations, including fairness to the parties, conservation of
resources of the court and the litigants, and the societal interests in consistent and
accurate results." Soldiers', Sailors', Marines' & Airmen's Club, Inc. v. Carlton
Regency Corp., 911 N.Y.S.2d 774, 778 (N.Y. Sup. Ct. 2010). "Since the
consequences of a determination that a party is collaterally estopped from litigating
a particular issue are great, strict requirements for application of the doctrine must be
satisfied to insure that a party not be precluded from obtaining at least one full hearing
on his or her claim." N. Shore-Long Island Jewish Health Sys., Inc. v. Aetna U.S.
Healthcare, Inc., 811 N.Y.S.2d 424, 426 (N.Y. App. Div. 2006) (internal quotation
marks and citation omitted).
Applying this standard to the case at hand, we have little doubt Crown met its
burden to prove the exact same issue—the meaning of "the Business" within Section
10.3(a)(iv) of the SPA—was before the arbitrator and the district court, and was
necessary to both outcomes. There is only one indemnity provision within the SPA,
and its meaning will determine the respective liabilities of the parties, whether it
relates to environmental, occupational, or any other type of third-party claim which
may arise. Continental cannot, and does not, dispute the identity or the decisiveness
of the issue in the two proceedings.
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Continental does, however, dispute the district court's conclusion it had a full
and fair opportunity to litigate the meaning of Section 10.3(a)(iv) before the arbitrator.
New York courts have encouraged a common-sense approach to issue preclusion:
A determination whether the first action or proceeding genuinely
provided a full and fair opportunity requires consideration of the realities
of the prior litigation, including the context and other circumstances
which may have had the practical effect of discouraging or deterring a
party from fully litigating the determination which is now asserted
against him. Among the specific factors to be considered are the nature
of the forum and the importance of the claim in the prior litigation, the
incentive and initiative to litigate and the actual extent of litigation, the
competence and expertise of counsel, the availability of new evidence,
the differences in the applicable law and the foreseeability of future
litigation.
Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 501 (N.Y. 1984) (internal quotation marks and
citation omitted); see also Buechel v. Bain, 97 N.Y.2d 295, 303 (N.Y. 2001) ("The
doctrine . . . is a flexible one, and the enumeration of these elements is intended
merely as a framework, not a substitute, for case-by-case analysis of the facts and
realities.").
Continental offers essentially two arguments to support its claim as to it not
having a full and fair opportunity to litigate the meaning of Section 10.3(a)(iv) before
the arbitrator. First, Continental contends the "Arbitration Decision is not entitled to
preclusive effect here because the arbitration was limited to environmental claims and
Continental did not have the opportunity to litigate its indemnity obligations for
occupational exposure claims in the environmental arbitration." Appellant's Br. at 19.
Continental cites to Saca v. Canas, 903 N.Y.S.2d 861 (N.Y. Sup. Ct. 2010), for the
proposition that Continental has been "denied the opportunity to litigate its indemnity
obligations for occupational exposure claims arising from inactive metal can plants."
Appellant's Br. at 39-40. Furthermore, Continental argues it had no incentive to
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present any evidence relevant to the occupational exposure claims because the
arbitrator conceded in his November 7, 2009, order—in which the arbitrator
concluded Continental had not violated the terms of the arbitration agreement by filing
suit in a matter "related to" the arbitration—that "his view of the dispute might allow
for inconsistent adjudications of the meaning of Section 10.3(a)(iv) of the SPA . . . ."
Appellant's Mot. to Supp. R., Jan. 10, 2010, Ex. C at 6.
To begin with, Saca is distinguishable. Saca involved an action to recover for
personal injuries allegedly sustained in a motor vehicle accident. 903 N.Y.S.2d at
864. Prior to bringing suit, the parties in Saca had also been involved in an
arbitration: the arbitrator awarded the plaintiff, Jose Saca, one million dollars, and
assigned 100% of the liability to Canas's co-defendant. Id. Canas then filed a motion
asking the New York Supreme Court to find Saca collaterally estopped from further
litigating Canas's liability in the instant action because the plaintiff had already been
given a full and fair opportunity to establish liability on the part of the Canas
defendants in the arbitration, but had failed to do so. Id. The court disagreed and
denied the motion, finding Saca had no reason to fully litigate his claims against
Canas in the arbitration. Notably, the court based its finding on a very specific reason:
the parties had entered into a stipulation agreement which made "the findings and
award of the . . . arbitration . . . not . . . binding on any parties in the New York
litigation." Id. at 865, 65-67. "Since the stipulation expressly made the outcome of
the [under-insured motorist] arbitration non-binding on this [judicial] action, the
stipulation discouraged plaintiffs from fully litigating their claims against all
defendants and encouraged them to focus their efforts on establishing Erskine as the
sole proximate cause of the underlying accident." Id. at 867.
Continental has not identified any such similar stipulation agreement. The fact
the parties agreed to litigate environmental claims via arbitration did not preclude
Continental from fully advocating for its proposed meaning of Section 10.3(a)(iv)
before the arbitrator. Continental chose to advocate for a finding supporting its
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interpretation by arguing the provision was interpretable as a matter of law, based
solely on the "plain meaning of the language used by the parties in the SPA" and
contended "the Transaction Documents are unambiguous and capable of a plain
meaning legal interpretation now, without need for a full evidentiary hearing." J.A.
at 172, 175. To be sure, New York law provides that, where possible, a contract
should be interpreted without looking to extrinsic evidence so long as the provision
is unambiguous.
[W]hen parties set down their agreement in a clear, complete document,
their writing should as a rule be enforced according to its terms.
Evidence outside the four corners of the document as to what was really
intended but unstated or misstated is generally inadmissible to add to or
vary the writing.
W.W.W. Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157, 162 (N.Y. 1990). Yet, nothing
precluded Continental from arguing in the alternative that if the court found the
provision ambiguous, it should look to extrinsic evidence to determine the provision's
meaning. See, e.g., Horse Shoe Capital v. Am. Tower Corp., No. 650512/10, 2011
WL 453004, at *2 (N.Y. Sup. Ct. Jan 28, 2011) (describing a case in which the parties
disagreed over whether the terms of a contract were ambiguous, and noting the
"plaintiff argues that these terms are ambiguous . . . [and] offers parol evidence to
support its interpretation of these terms"). For that matter, Continental could have
urged the court to find the provision ambiguous in the first place and petitioned for a
hearing on extrinsic evidence. Had Continental chosen to argue in favor of ambiguity,
and had the court agreed, nothing would have prevented Continental from presenting
the evidence it now hopes to introduce that indicates—in the context of occupational
exposure claim liability—the parties may in fact have intended to transfer liability for
closed or inactive metal can plants to Crown. But cf. W.W.W. Assocs., Inc., 77
N.Y.2d at 163 ("It is well settled that extrinsic and parol evidence is not admissible
to create an ambiguity in a written agreement which is complete and clear and
unambiguous upon its face.") (internal quotation marks and citation omitted). While
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it is true the parties had agreed the arbitration forum was to be limited to
environmental claims, it is also true the interpretation of Section 10.3(a)(iv) affects the
parties' respective liability for all third-party claims, no matter the type. The fact
Continental's strongest evidence—evidence indicating the parties intended Crown to
take on liability for closed or otherwise inactive metal can plants—developed in the
context of occupational claims, would not have precluded Continental from using such
evidence to explain the parties' general intention in drafting Section 10.3(a)(iv).
Accordingly, simply because the parties limited the arbitration to environmental
claims, it does not mean Continental thereby "did not have the opportunity to litigate
its indemnity obligations for occupational exposure claims in the environmental
arbitration." Appellant's Br. at 19.
Second, Continental contends that since the arbitrator noted both parties'
interpretations were "plausible," the provision was therefore "ambiguous" under New
York law and not capable of legal interpretation; rather, in such a situation, extrinsic
evidence should have been presented. Continental argues that failure to offer it an
evidentiary hearing meant it was not afforded a full and fair opportunity to litigate the
meaning of Section 10.3(a)(iv) before the arbitrator, and therefore it should not have
been precluded from re-litigating the interpretation of Section 10.3(a)(iv) in the
district court.
"Whether a contract is ambiguous is a question of law for the court, and
extrinsic evidence should not be considered to create an ambiguity where there
otherwise would be none." Ferghana Partners Inc. v. Bioniche Life Scis. Inc., No.
650747/09, 2011 WL 5385095, at *6 (N.Y. Sup. Ct. Oct. 5, 2011) (citing W.W.W.
Assocs., Inc., 77 N.Y.2d at 162); see also Gilpin v. Oswego Builders, Inc., 930
N.Y.S.2d 120, 122 (N.Y. App. Div. 2011) ("The interpretation of an unambiguous
contract provision is a function for the court, and matters extrinsic to the agreement
may not be considered when the intent of the parties can be gleaned from the face of
the instrument.") (internal quotation marks and citation omitted). "[A] provision is
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unambiguous if it has a definite and precise meaning, and is not reasonably
susceptible to differing interpretations." Ferghana Partners Inc., 2011 WL 5385095,
at *6 (internal quotation marks and citation omitted). "To determine whether a writing
is unambiguous, language should not be read in isolation because the contract must
be considered as a whole." Brad H. v. City of New York, 928 N.Y.S.2d 221, 224
(N.Y. 2011). "Clear language does not become ambiguous just because the parties
argue differing interpretations." Ferghana Partners Inc., 2011 WL 5385095, at *6.
We recognize that if a term is ambiguous, the proper procedure is to deny
summary judgment and allow the parties to present extrinsic evidence. See, e.g.,
Harkin v. WDF, Inc., No. 107073/08, 2011 WL 420665, *4 (N.Y. Sup. Ct. Jan. 7,
2011) (denying summary judgment where the court determined a contract ambiguous
and the parties had not yet presented extrinsic evidence). Furthermore, New York
courts have used the word "plausible" to describe competing interpretations which
required the introduction of extrinsic evidence to ascertain the parties' intent. See
Shearson Lehman Bros. Holdings, Inc. v. Schmertzler, 500 N.Y.S.2d 512, 517 (N.Y.
App. Div. 1986) (finding two "plausible" meanings to create ambiguity and explaining
that "[w]hen viewed realistically in the business context in which the agreement was
signed, the conclusion seems to us compelling that the meaning of the term was at
best, from plaintiff's viewpoint, ambiguous"); Winston v. Mezzanine Inv., L.P., 648
N.Y.S.2d 493, 499 (N.Y. Sup. Ct. 1996) (finding a contract ambiguous where terms
were not adequately defined and both parties interpretations were "plausible");
Carbone v. Carbone No. 18530/2003, 2010 WL 1223927, at *2 (N.Y. Sup. Ct. Mar.
17, 2010) (stating both parties offered "plausible interpretations of the term,
establishing that the term is ambiguous as applied to this agreement[,]" and remanding
for a hearing because the "[c]ourt cannot and should not speculate or rule as to the
parties understanding without further evidence"). On the other hand, the term
"plausible" has also been used to describe competing interpretations even when the
court ultimately determined only one interpretation was reasonable as a matter of law.
See RM Realty Holdings Corp. v. Moore, 884 N.Y.S.2d 344, 346 (N.Y. App. Div.
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2009) (finding an interpretation "plausible" but "defyi[ng] logic" and thereby not
"reasonably susceptible of more than one interpretation").
In this case, we do not believe the arbitrator made an explicit finding the
provision was ambiguous simply by calling both Continental's and Crown's respective
interpretations "plausible." As noted by the district court, the arbitrator adequately
explained why he rejected Continental's interpretation upon considering all of Section
10, and the SPA as a whole, and found, as a matter of law, Crown's proposed meaning
to be the only reasonable interpretation. See Metro. Life Ins. Co. v. RJR Nabisco,
Inc., 906 F.2d 884, 889 (2d Cir. 1990) (noting that the court should not find ambiguity
based on the interpretation of one party to a contract, where that interpretation would
"'strain the contract language beyond its reasonable and ordinary meaning'") (quoting
Bethlehem Steel Co. v. Turner Constr. Co., 2 N.Y.2d 456, 459 (N.Y. 1957)); Breed
v. Ins. Co. of N. Am., 46 N.Y.2d 351, 355 (N.Y. 1978) (finding ambiguity only where
“reasonable men may reasonably differ” as to the interpretation of the contract).
Because the arbitrator found the provision unambiguous, the arbitrator made no
mistake in refusing to order an evidentiary hearing, and such refusal may not serve as
grounds for Continental to claim it was denied a full and fair opportunity to litigate
the meaning of Section 10.3(a)(iv) before the arbitrator. Furthermore, absent unusual
circumstances not present here, see N.Y. Arbitration Law § 7511 (McKinney 2011),
it is not our place to question whether the arbitrator got it right. Under New York law,
"courts lack authority to review arbitral decisions, even where an arbitrator has made
an error of law or fact." Eastman Assocs., Inc. v. Juan Ortoo Holdings, Ltd., 935
N.Y.S.2d 166, 167 (N.Y. App. Div. 2011) (internal quotation marks and citations
omitted). We therefore decline to analyze the merits of the parties' competing
interpretations.
Moreover, other facts of this case indicate Continental knew exactly what was
at stake in both proceedings, had every incentive to litigate the provision's meaning,
and made its strategic choices accordingly. Notably, it was Continental who brought
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the summary judgment motion to the arbitrator. See Catalano v. Applied Biometrics
Prods., Inc., No. 03 Civ. 0046(NRB), 2003 WL 22004902, at *6 (S.D. N.Y. 2003)
("[M]ost importantly the fact that petitioner himself was the party who raised the
personal liability issues . . . indicate[s] that petitioner had a full and fair opportunity
to litigate the issues that were decided against him in arbitration."). In its motion for
partial summary judgment, Continental clearly asked for the arbitrator to interpret the
provision at issue. Furthermore, while Crown voiced its concern about inconsistent
judgments to both the arbitrator and the district court, and requested a stay of the
district court proceedings, Continental opposed those motions. In opposing the
motions, Continental again recognized the same issue was at stake. In light of this
realization, we are hard-pressed to conclude Continental was somehow not alerted it
should litigate the meaning of Section 10.3(a)(iv) to the best of its ability. Continental
may not rely on the arbitrator's remark his ruling might result in "inconsistent
outcomes" to support its claim it simply did not realize everything was on the line:
New York law clearly treats arbitration decisions the same as judicial determinations
for issue preclusion purposes. See Matter of Ranni's Claim, 58 N.Y.2d at 717.
For these reasons, we find Continental has failed to meet its burden of proving
it was not afforded a full and fair opportunity to litigate the meaning of Section
10.3(a)(iv). The district court, therefore, correctly determined Continental was
precluded from further litigating the provision's meaning, properly granted summary
judgment in favor of Crown, and did not abuse its discretion in denying Continental's
motion to reconsider.
III
Accordingly, we affirm in part and vacate and remand in part, with instructions
to amend the district court's order in a manner consistent with this opinion.
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