American Bankers v. Northwestern

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
______________________

Nos. 98-5266 & 98-5387
______________________
D. C. Docket No. 97-1827-CV-EBD

AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA,

Plaintiff-Counter-Defendant-
Appellee,
versus

NORTHWESTERN NATIONAL INSURANCE COMPANY,

Defendant-Counter-Claimant-Appellant.
_______________

No. 99-4195
_______________
D. C. Docket No. 97-1827-CV-EBD

AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA,

Plaintiff-Counter-Defendant-Appellee-Cross-Appellant,
versus

NORTHWESTERN NATIONAL INSURANCE COMPANY,

Defendant-Counter-Claimant-Appellant-Cross-Appellee.
_____________________________

Appeals from the United States District Court
for the Southern District of Florida
______________________________
(December 30, 1999)
Before EDMONDSON, BARKETT, Circuit Judges and COHILL*, Senior District
Judge.

BARKETT, Circuit Judge:

Northwestern National Insurance Company (“Northwestern”) appeals from

an adverse summary judgment in favor of American Bankers Insurance Company

of Florida (“American Bankers”) on American Bankers’ suit to enforce the

reinsurance contract between the parties.1 Northwestern seeks a reversal of the

district court’s judgment, and a grant of summary judgment in its favor declaring

that Northwestern has no liability under the insurance contract, or alternatively, a

reversal of the district court’s determination of the prejudgment interest amount in

the amended final judgment.

Background

This case involves the reinsurance contract between Northwestern and

American Bankers to indemnify payments originally made by Hartford Insurance

Company (“Hartford”) to Dow Corning Corporation (“Dow”) under Hartford’s

*
Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of
Pennsylvania, sitting by designation.
1
A reinsurance contract provides that one insurer (the “ceding insurer” or “reinsured”)
“cedes” all or part of the risk it underwrites, pursuant to a policy or group of policies, to another
insurer. The reinsurer agrees to indemnify the ceding insurer on the transferred risk. The purpose
of the reinsurance contract is to diversify the risk of loss, and to reduce required capital reserves.
See 13A John A. Appleman & Jean Appleman, Insurance Law and Practice §§ 7681, at 480
(1976); 19 George J. Couch, Cyclopedia of Insurance Law §§ 80:1, at 624 et seq. (2d ed. 1983).

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primary insurance policy with Dow. These payments satisfied personal injury

claims asserted against Dow by women who had received silicone breast implants.

Dow was directly insured by Hartford through two policies: (1) a

comprehensive general liability policy of $1 million on a “per occurrence” basis,

subject to a $50,000 deductible; and (2) additional coverage on an “aggregate”

basis, providing that any number of occurrences could be combined up to the $1

million policy limit, subject to a $500,000 deductible.

In order to spread its risk under this policy, Hartford purchased reinsurance

protection from American Bankers for the per occurrence policy. It chose not to

reinsure the aggregate basis policy. Under American Bankers’ reinsurance contract

with Hartford, American Bankers agreed to accept 30 percent of Hartford’s

liability up to $225,000 for any per occurrence loss exceeding $250,000.

American Bankers in turn sought to spread its risk by purchasing reinsurance and

contracted with Northwestern for this purpose. Under this contract, Northwestern

agreed to accept 92.3 percent of American Bankers’ exposure to Hartford up to

$224,500 for any per occurrence loss greater than $225,000.

Between October 24, 1994 and March 28, 1995, Hartford paid Dow’s

claims, and then submitted bills to American Bankers which American Bankers

paid. American Bankers subsequently billed Northwestern for its share of the

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payments under their contract. After paying the initial claims submitted to them by

American Bankers, Northwestern objected to the billing on the basis that American

Bankers had not acted reasonably in paying Hartford’s claims. Northwestern

asserted that although Hartford made payments to Dow on an aggregate basis, it

billed American Bankers on a per occurrence basis, which would not have been

covered by the reinsurance contracts. Northwestern took the position that

American Bankers failed to investigate adequately and should not have paid

Hartford’s claims.

After Northwestern refused to make any further payments, American

Bankers filed this suit to enforce the reinsurance contract. Northwestern

counterclaimed for the return of payments it had already made and sought a

declaration that Northwestern had no obligation to American Bankers under their

contract. The district court granted summary judgment to American Bankers and

denied Northwestern’s cross-motion for summary judgment. Northwestern now

appeals. We review a district court’s grant of summary judgment de novo,

applying the same standards utilized by the district court, and viewing the evidence

in the light most favorable to the party against whom judgment was granted.

Squish La Fish, Inc. v. Thomco Specialty Prods., Inc., 149 F.3d 1288, 1290 (11th

Cir. 1998).

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 Discussion

In this case, American Bankers seeks to enforce the reinsurance contract

between the parties while Northwestern seeks a declaration that it has no

obligations under the contract. Thus, our starting point is the language of the

contract in order to ascertain its terms and determine whether it has been breached.

The relevant language in the contract at issue is as follows:

All claims involving this reinsurance when settled by the
Company, shall be binding on the Reinsurer, which shall
be bound to pay its proportion of such settlements . . . .

American Bankers contends that under this provision of the contract Northwestern

cannot “second-guess” its decisions to pay claims and must defer to American

Bankers’ judgment. Northwestern argues that although this may be true generally,

Northwestern is not obligated to defer to American Bankers’ judgments where, as

here, American Bankers did not fulfill its obligation to act in good faith.

When faced with reviewing the terms of a reinsurance contract, courts have

recognized that the parties to these particular contracts are sophisticated

companies regularly involved in bargaining on an equal footing. Both parties to

this relationship are experts in the subject around which their relationship centers.

Moreover, reinsurance contracts themselves are sophisticated documents. The

Second Circuit has succinctly explained the nature of the reinsurance contract and

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the pragmatic derivations of the need both to defer to the decisions of the ceding

insurance company, but at the same time, to require good faith in the making of

those decisions:

Reinsurance involves contracts of indemnity, not liability. Reinsurers
do not examine risks, receive notice of loss from the original insured,
or investigate claims. In practice, the reinsurer has no contact with the
insured. . . . The reinsurance relationship is often characterized as
one of “utmost good faith.” This utmost good faith may be viewed as
a legal rule but also as a tradition honored by ceding insurers and
reinsurers in their ongoing commercial relationships. Historically, the
reinsurance market has relied on a practice of the exercise of utmost
good faith to decrease monitoring costs and ex ante contracting costs.
. . . [R]einsurers cannot duplicate the costly but necessary efforts of
the primary insurer in evaluating risks and handling claims.
Reinsurers may thus not have actuarial expertise . . . in defending
ordinary claims. They are protected, however, by a large area of
common interest with ceding insurers and by the tradition of utmost
good faith.

Unigard Sec. Ins. Co. v. North River Ins. Co., 4 F.3d 1049, 1054 (2d Cir. 1993)

(citations omitted). The relationship of these reinsurance contracts and companies

leads to the principle that reinsurers are generally bound by the reinsured’s

decision to pay the claim and must refrain from second guessing a good faith

decision to do so. See Henry T. Kramer, The Nature of Reinsurance, in

Reinsurance 1, 5 (R.W. Strain ed., 1980); Christiania Gen. Ins. Corp. v. Great Am.

Ins. Co., 979 F.2d 268, 280 (2d Cir. 1992) (“A reinsurer cannot second guess the

good faith liability determinations made by its reinsured . . . .”).

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 The contractual articulation of this general principle has been called the

“follow the fortunes” clause in reinsurance certificates or contracts. As it does in

this case, the clause usually states that when an insurer loses to -- or settles with --

the insured, the reinsurer must “follow the fortunes” of the ceding company and

pay on its reinsurance obligations. The Third Circuit has noted the compelling

policy reasons that counsel against de novo review of the insured’s decision to pay

under the “follow the fortunes” doctrine:

To permit the reinsurer to revisit coverage issues resolved between the
insurer and its insured would place insurers in the untenable position
of advancing defenses in coverage contests that would be used against
them by reinsurers seeking to deny coverage. . . . Were the Court to
conduct a de novo review of [the insurer's] decision-making process,
the foundation of the cedent-reinsurer relationship would be forever
damaged. The goals of maximum coverage and settlement that have
been long established would give way to a proliferation of litigation.
Cedents faced with de novo review of their claims determinations
would ultimately litigate every coverage issue before making any
attempt at settlement.

North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1206 (3rd Cir.

1995) (citations omitted).

This is not to say that there are no limitations to this doctrine. A court must

still ask whether the ceding insurer acted in good faith in settling or paying the

claims. This in turn requires that we determine what constitutes good faith in this

context. We are persuaded that simple negligence cannot be enough to establish

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bad faith. Virtually every decision by the ceding insurance company could be

second-guessed and litigated under a simple negligence standard. Thus, to equate

bad faith with simple negligence would vitiate all of the policy reasons that give

rise to the follow the fortunes doctrine. Rather, we agree with the Second Circuit

that the proper minimum standard for bad faith should be deliberate deception,

gross negligence or recklessness. See Unigard, 4 F.3d at 1069; see also North

River, 52 F.3d at 1216 (“As we have noted, bad faith requires an extraordinary

showing of a disingenuous or dishonest failure to carry out a contract. The standard

is not mere negligence, but gross negligence or recklessness. ”); id. at 1207

(“‘[F]ollow the fortunes’ doctrine requires a court to find reinsurance coverage

unless the reinsurer demonstrates the liability to the insured was the result of fraud

and collusion or not reasonably within the scope of the original policy.”).

In this case, Northwestern argues that Hartford submitted a false claim to

American Bankers which American Bankers then paid as a result of its failure to

investigate. Specifically, Northwestern asserts that Hartford paid Dow for multiple

claims under its aggregate policy, but treated all of the claims as a single

occurrence for purposes of presenting them to American Bankers, its reinsurers.

Northwestern argues that American Bankers should have investigated and

determined that Hartford’s claims were not covered by the reinsurance contract

8
between Hartford and American Bankers and, therefore, not covered by the

reinsurance contract between American Bankers and Northwestern.

American Bankers responds that it acted appropriately in evaluating and

paying Harthord’s claims. It points out that the reinsurance contract defines

“occurrence” to mean “an accident, event or happening, including continuous or

repeated exposure to conditions, which results in bodily injury . . . .[,]” and that

Hartford’s policy provides that:

$50,000 shall be deducted from the aggregate amount of all sums
which the Company shall be obligated to pay as (a) damages . . . with
respect to all insurance afforded by the policy as the result of Bodily
Injury . . . arising out of any one occurrence.

American Bankers argues that at the time of its decision there was legitimate

debate about whether a large group of similar claims were the result of a single

occurrence or multiple occurrences. See Barry R. Ostrager & Thomas R. Newman,

Insurance Coverage Disputes §9.02 (8th ed. 1995). American Bankers points out

that courts had held that many claims may constitute a single occurrence in the

context of massive toxic tort losses, and where multiple claims constitute a single

occurrence, single occurrence based coverage operates in a manner similar to

aggregate coverage. Hartford’s bills were presented on the basis that all of the

auto-immune breast implant claims constituted a single occurrence. American

Bankers maintains that, in good faith, it determined that it should pay those claims.

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 We agree with American Bankers that Northwestern’s contention that the

reinsurance contracts provided only for per occurrence coverage merely begs the

question of whether the claims constituted a single occurrence or multiple

occurrences. Under the state of the law 2 at the time of the submission of

Hartford’s claim for payment, we cannot say that American Bankers acted in a

grossly negligent or reckless manner in accepting or paying those claims.

American Bankers was, in fact, “following the fortunes” of its ceding insurance

company, Hartford. Nor is there anything in the record to support a claim that

American Bankers acted in a fraudulent or deliberately deceptive or grossly

negligent manner.

We are not persuaded that the after the fact determination by Hartford that it

had erroneously billed American Bankers makes a difference to our decision.3 To

2
See, e.g., Uniroyal, Inc. v. Home Insurance Co., 707 F. Supp. 1368, 1380-87 (E.D.N.Y.
1988) (Agent Orange); Owens-Illinois, Inc. v. Aetna Casualty and Surety Co., 597 F. Supp.
1515, 1527-28 (D.D.C. 1984) (asbestos); Owens-Illinois, Inc. v. United Insurance Co., 264 N.J.
Super. 460, 498-503, 625 A.2d 1, 21-23 (N.J. App. Div. 1993), aff’d in part, rev’d in part, 138
N.J. 437, 650 A.2d 974 (1994) (asbestos); Insurance Coverage Disputes §9.02. See also
International Surplus Lines Insurance Co. v. Certain Underwriters at Lloyd’s, 868 F. Supp. 917,
921 (S.D. Ohio 1994) (reinsurer could not challenge the single occurrence basis on which the
ceding company had paid the asbestos claims presented by its insured).
3
Subsequent to American Bankers’ payments to Hartford on its reinsurance contract,
Hartford advised American Bankers that it had erroneously overbilled American Bankers.
Hartford explained that it believed that the aggregate deductible issued to Dow had already been
exhausted by previous claims. Because the deductible actually had not been exhausted,
“[H]artford has amended its bills to allow the unexhausted portion of the aggregate deductible . .
. to respond as if on a per claim basis.” Hartford concluded that American Bankers should have

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determine whether a decision is made in good faith, we must look to the

circumstances at the time of the decision. The question is not whether Hartford or

American Bankers were ultimately correct or incorrect, but whether they acted in

good faith at the time. Under the facts in the record, we conclude that the district

court did not err in determining that American Bankers was entitled to recover on

its reinsurance contract.

As to Northwestern’s second appeal seeking reversal of the district court’s

ruling on prejudgment interest, we likewise affirm. The issue of prejudgment

interest was litigated as part of the original case. During the litigation, American

Bankers argued that prejudgment interest should be calculated from the date on

which each bill was approved for payment by Northwestern’s claims department to

July 27, 1998. Northwestern, by motion, opposed American Bankers’ method of

calculating prejudgment interest, arguing that under Florida law prejudgment

interest should run from the time the cause of action accrues. The district court

rejected Northwestern’s argument and its final judgment reflected the prejudgment

interest as sought by American Bankers. Northwestern’s notice of appeal from this

been billed a total of $1,054,955.21, rather than $1,803,836.29. The difference of $748,881.08
was refunded to American Bankers and the appropriate percentage of overbilling was likewise
refunded to Northwestern. The district court subsequently amended its final judgment, reducing
American Bankers’ recovery.

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judgment, case numbers 98-5266 and 98-5387, did not raise any issue pertaining to

prejudgment interest.

Two months after the final judgment had been entered, and after

Northwestern’s notice of appeal had been filed, Hartford notified the parties of its

billing error. See note 3 supra. Northwestern filed a motion pursuant to Rule 60(b)

of the Federal Rules of Civil Procedure4 to vacate the judgment on the ground of

“newly discovered evidence.” The district court granted Northwestern’s motion

only for the purpose of appropriately computing the amount owed to American

Bankers by Northwestern in light of Hartford’s refunds. The district court

specifically noted that:

4
Rule 60(b) provides in part:

On motion and upon such terms as are just, the court may relieve a party or [his]
legal representative from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; (5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) any other reason justifying relief from
the operation of the judgment. The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one year after the judgment,
order, or proceeding was entered or taken.

Fed.R.Civ.P. 60(b).

12
 this Court granted the Rule 60 motion only to the extent
necessary to adjust the final judgment amount. No other
aspect of the court’s original final judgment is under
review or subject to reconsideration. Appellate-leave
would only serve to unnecessarily delay the correction of
a simple matter which has little bearing, if any, on the
liability issues on appeal.

American Bankers v. Northwestern, No. 97-1827 (S.D. Fla. Nov. 17, 1998).

Northwestern filed a notice of appeal from the amended final judgment (i)

reiterating its position regarding American Bankers’ decision to pay Hartford’s

claims, and (ii) appealing the district court’s ruling regarding the calculation of

prejudgment interest. Having resolved the contractual issue, the question

remaining is the calculation of prejudgment interest.

Before we can address the merits of this question, however, we must address

American Banker’s contention that Northwestern’s argument in this regard is

untimely. An order granting or denying relief under Rule 60(b) is final and

appealable. 7 J. Moore’s Federal Practice, para. 60.30[3], at 60-343. An appeal of

a ruling on a Rule 60(b) motion, however, is narrow in scope, addressing only the

propriety of the denial or grant of relief and does not raise issues in the underlying

judgment for review. See Browder v. Director, Dep't of Corrections, 434 U.S. 257,

263 n.7 (1978). Because of this limitation, the law is clear that Rule 60(b) may not

be used to challenge mistakes of law which could have been raised on direct

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appeal. Gulf Coast Fans, Inc. v. Midwest Electronics Importers, 740 F.2d 1499,

1507 (11th Cir. 1984) (“Rule 60(b) does not extend the time for filing a notice of

appeal.”). Moreover, a district court’s order under Rule 60(b) is reviewable only

for abuse of discretion. Browder, 434 U.S. at 263; Gulf Coast Fans, 740 F.2d at

1510.

Both the original and final amended judgment calculate the prejudgment

interest in the same way, running from the date on which each of the three bills at

issue was approved by Northwestern. While Northwestern objected to this manner

of calculation before the final judgment, it never mentioned it in its briefs on direct

appeal. Given that this issue was litigated before the original final judgment,

Northwestern cannot now raise the issue in its subsequent appeal from the district

court’s grant of relief under Rule 60(b). Thus, we agree that Northwestern’s

argument regarding prejudgment interest is untimely. For all the foregoing reasons

the judgments of the district court are

AFFIRMED.

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