Acumen Re Management Corporation v. General Security National Insurance Company
1:09-cv-01796
S.D.N.Y.Mar 7, 2016Background
- Acumen Re Management (Acumen) was an underwriting agent under a 1994 Underwriting Agreement with Sorema; a Contingency Commission Addendum entitled Acumen to 30% of certain contingent commissions on annual net profits.
- GSNIC acquired Sorema in 2001; a 2002 Termination Agreement provided an immediate $1 million payment and deferred calculation/payment of contingent commissions in 2008, with certain provisions surviving termination.
- In 2008 GSNIC concluded no contingent commissions were due; Acumen sued for breach of contract and breach of the implied covenant of good faith in 2008 (case transferred to S.D.N.Y.).
- This Court dismissed the implied covenant claim as duplicative (Feb. 25, 2010). On Sept. 7, 2012 the Court granted partial summary judgment for GSNIC on four of five breach theories, leaving one theory (relying on inaccurate data) for trial and finding Acumen had not shown calculable damages.
- Acumen sought reconsideration and Rule 54(b) certification; the district court denied reconsideration but certified for appeal; the Second Circuit dismissed that appeal for lack of jurisdiction. Acumen then moved under 28 U.S.C. § 1292(b) to certify the Feb. 25, 2010 and Sept. 7, 2012 orders for interlocutory appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Sept. 7, 2012 order presents a controlling question of law for §1292(b) certification | Sept. 7 order erroneously found no evidentiary proof of damages and granted summary judgment on issues not pleaded by GSNIC; thus legal questions exist warranting immediate review | The disputed points are factual (evaluation of evidence) and the court properly exercised discretion in framing issues at summary judgment | Denied: Acumen failed to identify a controlling pure question of law or substantial basis for disagreement |
| Whether interlocutory appeal would materially advance termination of the litigation | Immediate appeal could avoid a large trial if Acumen prevails, so review would advance termination | Even if reversed, district court must still resolve core merits; controlling issues are factual so interlocutory appeal would not materially advance termination | Denied: appeal would not materially advance termination |
| Whether the Feb. 25, 2010 dismissal of the implied covenant claim is certifiable under §1292(b) | The implied covenant was dismissed before viability of the contract claim was resolved; merits raise legal issues for appeal | The implied covenant claim was duplicative of the contract claim because both rest on same factual allegations | Denied: not a controlling question of law and motion was extremely untimely |
| Whether Acumen's §1292(b) motion is timely | Implicit: immediate certification request following Second Circuit remand | GSNIC: significant delay since dismissal of prior appeal and since orders; delay fatal to certification | Denied: motion untimely (long delay cited) |
Key Cases Cited
- Koehler v. Bank of Bermuda Ltd., 101 F.3d 863 (2d Cir. 1996) (federal policy favors postponing appellate review until final judgment)
- Coopers & Lybrand v. Livesay, 437 U.S. 463 (U.S. 1978) (general rule to delay appeals until final judgment)
- In re Flor, 79 F.3d 281 (2d Cir. 1996) (only exceptional circumstances justify interlocutory appeals)
- Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21 (2d Cir. 1990) (discussing exceptional circumstances for interlocutory review)
- Coach Leatherware Co. v. Ann Taylor, Inc., 933 F.2d 162 (2d Cir. 1991) (district court may grant summary judgment framed differently than movant’s structure)
- First Fin. Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109 (2d Cir. 1999) (parties must have fair opportunity to brief issues for court to decide on summary judgment)
- Casey v. Long Island R. Co., 406 F.3d 142 (2d Cir. 2005) (evaluation of evidence is a question of fact, not law, for §1292(b) purposes)
- Harriscom Svenska AB v. Harris Corp., 947 F.2d 627 (2d Cir. 1991) (§1292(b) allows certification only of questions of law)
- In re The City of New York, 607 F.3d 923 (2d Cir. 2010) (§1292(b) inappropriate where appeal would not speed resolution of merits)