MacDonald v. Aetna Indemnity Co. ( 1914 )

The receivers moved to erase this appeal, which was taken by creditors of the corporation whose affairs are in settlement, assigning as reasons: (1) that the order appealed from was not the proper subject of appeal, and (2) that the appellants were not entitled to take an appeal therefrom.

In support of the first proposition it is alleged that an appeal could not be predicated upon the order because it was not in the nature of a judgment, and did not involve the determination of any question of law or fact in issue, but was rather an order made in the exercise of the court's discretion in respect to a purely administrative matter. The opinions of this court inGuarantee, etc., Deposit Co. v. Philadelphia, R. N.E.R. Co., 69 Conn. 709, 714, 38 A. 792, and in Links v.Connecticut River Banking Co., 66 Conn. 277, 283,33 A. 1003, furnish a complete answer to these contentions. The first determines that the order was the proper subject of an appeal; and the second that creditors whose interests were directly involved were proper parties to take such an appeal. See also Trustees v.Greenough, 105 U.S. 527, 531, as to the appealable character of the order.

The order appealed from was one which was entered in the exercise of the court's discretionary power. It cannot be set aside by us unless it appears that it was so unreasonable, under the circumstances before the trial court, that its authorization amounted to a clear abuse of the judicial discretion. Wood v. Holah,80 Conn. 314, 315, 68 A. 323; Cables v. Bristol WaterCo., 86 Conn. 223, 225, 84 A. 928. The question before the trial court for decision was as to the course of business conduct which, as a matter of prudential policy, should be pursued by the receivers in the administration of the assets of a receivership estate. The question before us is the very different one of whether or not the decision arrived at was such an unreasonable one that it was without warrant in the exercise of the court's discretion. The question presented to the trial court did not involve, nor does that presented to us involve, the decision of an issue of law. In both cases the decision to be made was, and is, one calling for a careful weighing and balancing of a variety of considerations in arriving at a conclusion as to the course of prudence under the circumstances. The field of inquiry covers the subject of the probable validity of the claim made by the receivers, the apparent difficulties, if any, likely to attend an attempt to enforce it in the courts, the collectibility of a judgment obtained, the delays likely to be involved, the importance of these delays, the expense likely to be incurred, and the amounts involved in respect to both assured recovery and surrender.

For the most part these are purely practical considerations. At points, however, some of them touch legal questions quite closely. This is particularly true of the matter of the validity of the claim which is the subject of the proposed compromise. That is an important factor in the situation. No intelligent conclusion, as to the wisdom or unwisdom of the proposed compromise, can be arrived at which does not take it into account. And yet the question of validity, important as it is, is not in issue. Its decision is not called for, and none could be made which could possess any other importance than as expressing a personal view. It would bind nobody, and conclude nothing. The inquiry which the trial court was called upon to make had, and that which we are now to make has, no other purpose and possesses no other importance than the ascertainment in a general way of the probable or possible result of litigation of the claim. This inquiry, to be intelligent, must be made by one possessed of legal knowledge, and in the pursuit of it legal knowledge must be employed. But legal decision is not called for, and would be idle if attempted.

The contention of the appellants gathers around the proposition that the claim is, in its entirety, unquestionable and, beyond all save captious dispute, valid. Starting with this proposition as its fundamental premise, further propositions are added, to wit: that jurisdiction over the reinsuring corporation can be easily obtained, the claim readily embodied in a judgment, and funds for the satisfaction of such judgment be reached without difficulty. These facts established, as the appellants contend, they continue their argument by the assertion that in the presence of such conditions showing certainty of enforcement and collection, no other facts disclosed or considerations advanced, whether touching delay or expense, or any other matter, could, by possibility, furnish a reasonable justification for the surrender of the large sum involved.

This argument would be most convincing were the major propositions asserted clearly established. Evidence is lacking to support the propositions touching the means of enforcement and satisfaction of the claim by litigation, and judicial knowledge can scarcely fully supply this lack. But the convenience and sufficiency of the available procedure of enforcement and collection may be assumed, and there yet remains the underlying question of the validity of the claim made by the receivers.

Reinsurance treaties, as customarily written, have repeatedly had judicial construction, and the obligations of the reinsurer under such contracts determined. The appellants take their position upon this adjudication, and assert that they establish incontestably that this reinsurer — the affairs of the reinsured being in the hands of the court for settlement — is obligated not merely to indemnify the reinsured, but to pay to its receivers the full amount of the reinsurer's pro rata share of all losses payable by the reinsured as soon as determined, and whether paid by it in full or only in part, or not at all. This assertion is doubtless well made if the treaty before us does not differ materially either in its general character or in some of its pertinent provisions from those under examination in the cases relied upon. That of Allemannia Fire Ins. Co. v. Firemen'sIns. Co., 209 U.S. 326, 28 Sup. Ct. Rep. 544, is perhaps the most recent, as well as the most comprehensive in statement, of this quite considerable group. The reinsurance treaty there was a typical one. Its provisions were in no substantial respect different from those which had entered into the adjudications of the prior cases. Upon a review of several of these cases the following clear statement of the nature of the contract and of the obligations assumed by the reinsurer was made (p. 332): "The contract is one of indemnity to the person or corporation reinsured and it binds the reinsurer to pay to the reinsured the whole loss sustained in respect to the subject of the insurance to the extent to which he is reinsured. It is not necessary that the reinsured should first pay the loss to the party first insured before proceeding against the reinsurer upon his contract. The liability of the latter is not affected by the insolvency of the insured or by its inability to fulfill its own contract with the original insured. The claim of the reinsured rests upon its liability to pay its loss to the original insured and is not based upon the greater or less ability to pay by the reinsured." The contract is thus made not merely one of indemnity, but one requiring payment by the reinsurer to the reinsured of the former's pro rata amount of losses as they accrue, altogether regardless of payment by the reinsured or his ability to pay.

With respect to this entire group of cases, culminating in the Allemannia case, it is to be noted that all the contracts involved in them were reinsurance contracts, properly speaking. The reinsured was engaged in an insurance business solely. The original risks were all insurance risks, and the provisions of the several contracts touching liability were, in all material respects, substantially uniform. The court in the Allemannia case began its discussion by observing that the term "reinsurance" had a well-known meaning, and that contracts of that character had been in force in the commercial world for a long period of years. It then proceeded to interpret the contract by the aid of the adjudicated cases.

The present record does not disclose under what form of contract the Indemnity Company's outstanding obligations arose. It was authorized to execute contracts of suretyship on the bonds or obligations of other persons or corporations, and presumably some, and perhaps a large proportion of the claims against it, arose under such contracts in which it assumed a suretyship rather than indemnity obligation. 12 Special Laws, p. 714, § 7. It was empowered to become the guarantor of the fidelity of persons holding places of public or private trust, and of the performance of contracts, and to execute or guarantee bonds or undertakings in all actions or proceedings where bonds are required. We are not informed as to the extent of this feature of the company's business, or as to the form which the guarantee contracts executed assumed; but presumably there were such contracts furnishing outstanding losses, and quite likely some or all of them took the form of guaranty rather than indemnity contracts. These suretyship and guaranty contracts lie outside of the ordinary and strict field of insurance. 1 Brandt on Suretyship Guaranty (3d Ed.) § 5; 22 Cyc. 80. Insurance against the consequences to the company as surety or guarantor is thus not in strictness reinsurance, but forms the first insurance stage in those transactions.

The importance of this distinction, as related to the liabilities of the Munich Company, under its contract, remains to be considered. In an English case decided only last year a very similar situation was presented.In re Law Guarantee Trust Accident Soc., Ltd., L. R. (1913) 2 Ch. Div. 604. The Law Guarantee Trust and Accident Society, having in the ordinary course of its business guaranteed certain debentures, effected a reinsurance of its risk to the extent of two elevenths with the Liverpool Mortgage Insurance Company. Payment of the bonds was defaulted, and the Society went into liquidation. The original contract of the Society was interpreted to be one of suretyship on special terms, the Society insuring no risk in the ordinary sense, but undertaking with the creditor to pay if the principal debtor did not, and it was held that, such being the case, the supplemental contract of the Company could not be one of reinsurance in the ordinary sense of that word. pp. 611, 612. It was, says the court, more properly to be described as one of limited indemnity, with the result that neither the Society, nor those representing it in liquidation, could recover a greater amount than it had itself paid. p. 612.

If this conclusion should be accepted as resting upon sound principles and applicable to the present contract, an attempt to enforce the claim of the receivers in its entirety would face difficulties. We have no occasion to express our views upon the legal question involved. It is apparent that the feature of the present contract now under consideration, somewhat new to litigation, furnishes the reinsurer an opportunity for the presentation of an obstructive defense too substantial to be ignored, and one which, if successful even in part, might be seriously disturbing to the interests of the creditors of the receivership.

In this connection it is also worthy of notice that the provisions of the present contract touching the time and conditions of payment, as contained in Article XIV, are quite differently expressed than in any of the previous cases relied upon. The Allemannia case recognizes that the obligations of the reinsurer as therein stated might be modified or changed by difference in provisions. In that case the provision was that the reinsurer should pay its pro rata share of losses "in the same manner, and upon the same terms and conditions as paid by the said reinsured company under its contracts." It was held that there was no substantial difference between this language and that of the contracts in earlier adjudicated cases noticed, where the provisions were: "in case of loss this company shall pay pro rata at and in the same time and manner as the company reinsured" (Cashau v. Northwestern Nat. Ins. Co., 5 Biss. [U.S.C. C.] 476); "loss, if any, payable at the same time and pro rata with the insured" (Ex parteNorwood, 3 Biss. [U.S.C. C.] 504; Blackstone v. AllemanniaFire Ins. Co., 56 N.Y. 104); "loss, if any, payable pro rata to them at the same time, and in the same manner as they pay" (Consolidated Real Estate FireIns. Co. v. Cashow, 41 Md. 59). In other earlier cases the provisions were either identical with those enumerated (Fame Ins. Co.'s Appeal, 83 Pa. 396; In reRepublic Ins. Co., Fed. Cas. No. 11,705); or "loss, if any, payable pro rata with the reinsured" (Norwood v.Resolute Fire Ins. Co., 47 How. Pr. [N. Y.] 43); or "to pay as may be paid thereon" (In re Eddystone MarineIns. Co. — Ex parte Western Ins. Co., L. R. [1892] 2 Ch. Div. 423); or "loss, if any, to be settled and paid pro rata with the reinsured, and at the same time and place, and upon the same terms and conditions" (Hunt v. NewHampshire Fire Underwriters Asso., 68 N. H. 305,38 A. 145). In the present treaty the language points more directly to a condition precedent of prepayment, and might be urged to support an indemnity construction.

Again, the present treaty apparently differs from those which have heretofore been before the courts in that it contains Article XVIII. Very possibly it would be held that neither of these two distinguishing features change the contract in any material respect from those which have had judicial interpretation. That was not for the court below, and is not for us, to determine. The point is that the court below was not dealing with certainties, since it is apparent that the situation is one which furnishes the reinsurer something more than idle grounds for defensive litigation.

In view of these considerations, taken in connection with the undoubted advantages attending a prompt settlement of the existing controversy without litigation, the immediate liquidation of the reinsurer's liability upon adjusted claims and the payment unquestioned of the full amount of its share of the very considerable sum representing upon the receivers' books expenses incurred in adjustments, it is impossible for us to say that the court's action approved at the hearing by representatives of a large amount of claims, and opposed by only one, in authorizing acceptance of the offer of compromise, was an abuse of its discretion.

There is no error.

In this opinion THAYER, RORABACK and BEACH, Js., concurred.