Pine Top Receivables of Illinois, LLC v. Banco De Seguros Del Estado

In the

United States Court of Appeals
For the Seventh Circuit
____________________

No. 16-3499
PINE TOP RECEIVABLES OF ILLINOIS, LLC,
Plaintiff-Appellant,
v.

BANCO DE SEGUROS DEL ESTADO,
Defendant-Appellee.
____________________

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 6357 — Marvin E. Aspen, Judge.
____________________

ARGUED APRIL 6, 2017 — DECIDED AUGUST 7, 2017
____________________

Before EASTERBROOK, MANION, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. Between 1977 and 1984 Pine
Top Insurance Company (the Insurer) and Banco de Seguros
del Estado (Banco) entered into five treaties, by which Banco
reinsured about 2% of the Insurer’s business. The Insurer
stopped writing policies in 1985, went into receivership in
1986, and began liquidating in 1987. But there were still in-
vestments to manage, premiums to collect, and claims to pay
2 No. 16-3499

on old policies, which meant that the liquidator had to run
the business for many years.
Through 1993 the liquidator complied with the treaties’
provisions requiring balances to be calculated quarterly and
statements sent. If the Insurer owed reinsurers net balances
on the previous quarter’s business, it paid them; if the rein-
surers owed the Insurer (because claims paid exceeded rev-
enues), bills were sent and became due. After November
1993, however, the liquidator stopped sending either checks
or bills. Silence ensued; the liquidator did not explain the ab-
sence of new statements, checks, or bills. Fifteen years later
the liquidator sent Banco two notices: first, the net on all
1993 through 1999 business was in Banco’s favor, and it was
owed about $225,000 for that period; second, the net for pe-
riods before 1993 was about $2.5 million in the Insurer’s fa-
vor. The liquidator set off the two amounts and demanded
more than $2 million. Banco did not reply until 2010, when it
protested the 2008 bill as untimely.
In 2010 Pine Top Receivables of Illinois (which we call
Pine Top) bought all of the Insurer’s receivables. Two years
later it sued Banco in federal court to collect the balance.
Banco did not counterclaim for the $225,000, because the liq-
uidator retained the Insurer’s debts. Litigation about proce-
dural issues, many arising from the fact that Banco is wholly
owned by Uruguay, consumed several years and led to our
decision in Pine Top Receivables of Illinois, LLC v. Banco de Se-
guros del Estado, 771 F.3d 980 (7th Cir. 2014). Banco’s limita-
tions defense remained for consideration in the district court.
The district court granted summary judgment in its favor,
ruling that Pine Top’s claim is roughly a decade late. 2016
U.S. Dist. LEXIS 70462 (N.D. Ill. May 31, 2016), reconsidera-
No. 16-3499 3

tion denied, 2016 U.S. Dist. LEXIS 116181 (N.D. Ill. Aug. 30,
2016).
The reinsurance treaties have slightly different language,
which the district court’s thorough opinion sets out. We omit
details, because what matters now is the treaties’ structure:
each requires scheduled netting of claims and payment of
the balance in whichever direction it lies. That was done
through 1993. Then in 2008 the liquidator sent Banco a bill
for pre-1993 balances, which under the treaties’ language
should have been stated and collected long ago. The district
court concluded that the claims against Banco accrued no
later than 1993. The treaties provide for use of Illinois law,
which gives ten years (until 2003) to sue on contracts. 735
ILCS 5/13-206. Yet Pine Top did not sue until 2012.
Pine Top does not contest this understanding of ordinary
contract principles. But it insists that ordinary principles do
not apply to insurance liquidation in light of 215 ILCS 5/206.
That statute reads:
In all cases of mutual debts or mutual credits between the [insol-
vent insurance] company and another person, such credits and
debts shall be set off or counterclaimed and the balance only
shall be allowed or paid, provided, however, that no set-off or
counterclaim shall be allowed in favor of any person where
(a) the obligation of the company to such person was pur-
chased by or transferred to such person with a view of its be-
ing used as a set-off or counterclaim, or
(b) the obligation of such person is to pay an assessment lev-
ied against the members or subscribers of any company
which issued assessable policies, or to pay a balance upon a
subscription to the shares of a stock company.
No set-off shall be allowed in favor of an insurance agent or bro-
ker against his account with the company, for the unearned por-
4 No. 16-3499

tion of the premium on any cancelled policy, unless that policy
was cancelled prior to the entry of the Order of Liquidation or
Rehabilitation, and unless the unearned portion of the premium
on that cancelled policy was refunded or credited to the assured
or his representative prior to the entry of the Order of Liquida-
tion or Rehabilitation.

Pine Top tells us that this statute allows the liquidator to ig-
nore the treaties, wait until the end of the liquidation, and
then submit one bill netting multi-decade balances across
multiple treaties.
The district judge was not persuaded, and neither are we.
The statute does not provide that a liquidator may wait until
the very end to net the firm’s debits and credits. All it tells us
is that balances must be netted and only the net paid. Netted
how frequently? Over what period? Paid when? The statute
does not say. The district judge thought that the most suita-
ble period is the one the parties themselves chose. And the
judge added that the state judiciary has not held or even
hinted that liquidators may wait indefinitely. One court held
that, if a liquidator proposes a time for netting and a judge
approves that proposal after notice and a hearing, then the
approved time governs. In re American Mutual Reinsurance
Co., 238 Ill. App. 3d 1 (1992). But the Insurer’s liquidator did
not obtain judicial approval for delay. There’s no statutory
basis for thinking that a liquidator has carte blanche to do the
netting any time he pleases and thus to deprive reinsurers of
the benefit of negotiated deadlines and extend the statute of
limitations for—well, potentially forever.
Pine Top offers a second contention: that the 2008 bill
was an “account stated.” In Illinois, as in most other jurisdic-
tions, the parties to a contract may resolve differences about
who owes how much to whom and pick a definitive num-
No. 16-3499 5

ber. This kind of agreement establishes a new contract and
starts its own period of limitations. Judges call agreement on
a bottom line an “account stated.” According to Pine Top,
when Banco did not respond promptly to the 2008 state-
ment, that was as good as an agreement and permitted a suit
any time within the next ten years.
Banco protests that it did not receive the statement until
2010 and blames problems in international mail. No matter.
Failure to respond to a proposal differs from acceptance. If
after a dispute about property lines Jones sends his neighbor
Smith a letter asserting that Smith must pay him $2 million,
and Smith throws the letter in the garbage, Smith does not
owe Jones a penny. Nor can Green acquire Brown’s prized
cat by sending a letter offering $1 that Brown ignores. It
takes an offer and acceptance to form a contract—and the
judiciary in Illinois tells us that an account stated is a kind of
contract. See, e.g., Toth v. Mansell, 207 Ill. App. 3d 665, 671–
72 (1990); Allied Wire Products, Inc. v. Marketing Techniques,
Inc., 99 Ill. App. 3d 29, 39–40 (1981). The liquidator made a
proposal, Banco did not accept, a contract was not formed,
and the “account stated” claim fails.
The district court was right to dismiss this suit as untime-
ly.
AFFIRMED