Vantage Commodities Financial Services I, LLC v. Assured Risk Transfer Pcc, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VANTAGE COMMODITIES FINANCIAL
SERVICES I, LLC,
Plaintiff,
Case No. 1:17-cv-01451 (TNM)
v.
ASSURED RISK TRANSFER PCC, LLC,
et al.,
Defendants.
MEMORANDUM OPINION
Vantage Commodities Financial Services I, LLC won a multi-million dollar arbitration
award against Assured Risk Transfer PCC, LLC, or ART. Now Vantage wants the money.
Although the arbitration award represents the proceeds of a credit insurance policy that ART sold
to Vantage, ART says it cannot pay by itself because it counted on help from reinsurance
companies. And the companies that reinsured ART’s liability under the insurance policy have
refused to help. So Vantage has sued ART and the reinsurance companies. It has also sued
Willis Limited, Willis Re Inc., and Willis Towers Watson Management (Vermont), Ltd.—related
companies that Vantage says offered ART their services in captive insurance management and as
reinsurance brokers and intermediaries. The reinsurance companies and the Willis companies
have filed Motions to Dismiss. Because Vantage failed to establish the Court’s personal
jurisdiction over the reinsurance companies, their Motions to Dismiss will be granted. And
because Vantage did not state a contract claim but has stated several negligence claims against
the Willis Defendants, their Motion to Dismiss will be granted in part and denied in part.
I. BACKGROUND
This case began with a series of related financial transactions. First, Vantage extended
$44 million in credit to an energy company. Compl. ¶ 93. Second, ART insured Vantage
against the risk that the energy company would default, up to $22 million. Id. ¶ 17. Third, the
Willis companies helped ART reinsure 90% of its liability by brokering reinsurance contracts
with several other companies, including the seven reinsurance companies that are defendants
here. 1 Then the energy company defaulted and went bankrupt. Id. ¶¶ 82, 89.
Vantage submitted proof of loss to ART to collect on its insurance policy, but ART
denied the claim based on Vantage’s purported failure to comply with a collateralization
requirement in that policy. Id. ¶¶ 19, 94. So Vantage presented its claim to an arbitration panel,
which determined that Vantage had met its collateralization obligations and that ART owed
Vantage $22 million in damages, plus several million in interest and costs. Id. ¶¶ 20-21, 136.
The Supreme Court of New York confirmed the award in the amount of $26,288,351.80 plus
post-judgment interest that continues to accrue. Id. ¶ 22.
Vantage has not received the funds. Id. ¶ 24. ART told Vantage that the only assets it
has to pay the judgment are a $2.2 million letter of credit and its reinsurance policies. Id. ¶ 134.
And the Reinsurer Defendants have refused to pay ART, claiming that ART and the Willis
companies violated the terms of the reinsurance agreements by failing to provide them prompt
notice of Vantage’s loss. Id. ¶¶ 139-142. The Reinsurer Defendants have also rebuffed
1
The defendant reinsurance companies, also referred to in the parties’ submissions and in this
opinion as the Reinsurer Defendants, are Hannover Ruckverishcerung AG, Partner Reinsurance
Europe PLC, Syndicate 4472, Syndicate 2001, Syndicate 1206, Catlin Re Switzerland, and
Caisse Centrale De Réassurance. Compl. 3.
2
Vantage’s efforts to collect, claiming that Vantage has no contractual right to demand payment
directly from them. Id. ¶ 150.
Vantage has now turned to federal court, filing a Complaint that names ART, the seven
Reinsurer Defendants, and the three Willis companies as defendants. 2 Vantage asserts breach of
contract claims against the Reinsurer Defendants and asks the Court for declaratory judgment
establishing their contractual obligations. Id. ¶¶ 152-54, 162. It also asserts breach of contract
and negligence claims against the Willis Defendants. Id. ¶¶ 163-187. 3 The Reinsurer
Defendants have filed two Motions to Dismiss, and the Willis Defendants have filed one.
II. ANALYSIS
A. The Court Cannot Exercise Personal Jurisdiction Over the Reinsurer
Defendants
To hear a claim against a defendant, a court must have personal jurisdiction over that
defendant. There are three requirements for a court to exercise personal jurisdiction. First, the
state’s long-arm statute must reach the defendant. GTE New Media Servs. Inc. v. BellSouth
Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000). Second, the exercise of jurisdiction must comport
with the constitutional requirements of due process. Id. Third, service of summons must take
place to assert the court’s jurisdiction. Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484
U.S. 97, 104 (1987). The plaintiff bears the burden of establishing a basis for personal
jurisdiction. Crane v. New York Zoological Soc., 894 F.2d 454, 456 (D.C. Cir. 1990).
2
This Court has subject matter jurisdiction over Vantage’s claims under 28 U.S.C. § 1332
because the parties are diverse and the amount in controversy exceeds $75,000. See Pl.’s Supp.
Filing.
3
Only one of the Complaint’s seven counts purports to be a claim against ART. This count
seeks declaratory judgment about the contractual rights of Vantage and the contractual
obligations of the Reinsurer Defendants. Id. ¶ 162. Vantage apparently names ART only as an
interested party—not as one against which it seeks relief. Id. ¶ 160.
3
1. The District of Columbia’s Long-Arm Statute Reaches the Reinsurers
The District of Columbia’s long-arm statute authorizes courts to “exercise personal
jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from
the person’s . . . transacting any business in the District of Columbia.” D.C. Code
§ 13-423(a)(1). It also authorizes jurisdiction over persons defending against claims that arise
from “contracting to insure or act as surety for or on any person, property, or risk, contract,
obligation, or agreement located, executed, or to be performed within the District of Columbia at
the time of contracting, unless the parties otherwise provide in writing.” D.C. Code § 13-
423(a)(6). Vantage argues that I have jurisdiction over the Reinsurer Defendants under both
these prongs of the long-arm. Pl.’s Opp. to Reinsurer Defs.’ Mots. Dismiss 12-14.
Under the insurance prong of the statute, Vantage correctly observes that the Reinsurer
Defendants contracted to insure ART, a legal person located in the District of Columbia at the
time of contracting. Id. at 13. The Reinsurer Defendants do not contest this. Instead, they claim
they are beyond the reach of the long-arm statute because Vantage cannot assert rights under
their contracts with ART and so can make no claim arising from those contracts. Memo. ISO
Mot. Dismiss by Caisse Centrale De Réassurance, Hannover Ruckverishcerung AG, and Partner
Reinsurance Europe PLC (First Reinsurer Defs.’ Memo. ISO Mot. Dismiss) 14; Reply ISO First
Reinsurer Defs.’ Mot. Dismiss 5-6. 4 But this argument goes to the merits rather than to
jurisdiction. And in any case, the long-arm’s “arising from” requirement is satisfied “when the
claim has a discernible relationship” to the District-related activity. I Mark Mktg. Servs., LLC v.
Geoplast S.p.A., 753 F. Supp. 2d 141, 157 (D.D.C. 2010). Here, Vantage’s claim against the
4
The other Reinsurer Defendants filed a separate Motion to Dismiss that contests only the due
process and service requirements for exercising personal jurisdiction. Memo. ISO Mot. Dismiss
by Syndicate 4472, Syndicate 2001, Syndicate 1206, and Catlin Re Switzerland (Second
Reinsurer Defs.’ Memo. ISO Mot. Dismiss) 10.
4
reinsurers has a clear relationship to the reinsurers’ contracts with ART. It therefore arises from
the Reinsurer Defendants’ contracts to insure a person in the District and falls within the scope of
the District’s long-arm statute. 5
Alternatively, this Court has jurisdiction under the “transacting any business” prong of
the statute for the reasons explained in the due process analysis below. See Thompson Hine, LLP
v. Taieb, 734 F.3d 1187, 1189 (D.C. Cir. 2013) (holding that the “transacting any business”
prong “provide[s] jurisdiction to the full extent allowed by the Due Process Clause”).
2. The Exercise of Jurisdiction Comports with Due Process
The Due Process Clause limits a court’s jurisdiction to defendants who “have certain
minimum contacts with [‘the territory of the forum,’ which is to say, the geographic area under
the court’s authority,] such that the maintenance of the suit does not offend traditional notions of
fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
Depending on the defendant’s forum contacts, a court’s personal jurisdiction over a defendant
may be general, allowing the court to hear any claim against the defendant, or specific, allowing
the court to hear claims against the defendant only if those claims arise from the defendant’s
forum contacts. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
A district court may exercise general jurisdiction over all claims against a corporate
defendant if the corporation’s “affiliations with the State are so continuous and systematic as to
render [it] essentially at home” in the territory subject to the court’s authority. Daimler AG v.
Bauman, 571 U.S. 117, 761 (2014). Although the Supreme Court has not foreclosed the
5
The Reinsurer Defendants also argue that they “did not do business with ART in the District of
Columbia,” citing declarations showing that they negotiated the contract mostly by email and
phone, without meeting in the District. First Reinsurer Defs.’ Memo. ISO Mot. Dismiss 14. But
the insurance prong of the long-arm statute does not require doing business in the District. See
D.C. Code § 13-423(a)(6).
5
possibility of an “exceptional case,” courts generally consider a corporation at home only in the
place of its incorporation and in its principal place of business. See id. & n.19. Vantage
concedes that it does not know of any facts that would give me general jurisdiction over the
Reinsurer Defendants. Pl.’s Opp. to Reinsurer Defs.’ Mots. Dismiss 12 n.5. And by Vantage’s
own account, the Reinsurer Defendants are incorporated and have their principal places of
business in Germany, Ireland, the United Kingdom, Switzerland, and France. Pl.’s Supp. Filing
4-7. So I do not have general personal jurisdiction over the reinsurers. 6
A district court that lacks general jurisdiction may still have specific jurisdiction over
claims related to acts by which a defendant “purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the benefits and protections of its
laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). Purposeful availment does not require
that a defendant physically enter the forum state. Burger King, 471 U.S. at 476. 7 It simply
“ensures that a defendant will not be haled into a jurisdiction solely as a result of random,
fortuitous, or attenuated contacts or of the unilateral activity of another party or a third person.”
Id. at 475 (internal citations omitted). For a commercial actor, it is enough that the defendant
purposefully directed its efforts toward residents of the forum state or created continuing
obligations to forum residents. Id. By tying jurisdiction to actions by the defendant that create a
6
Vantage suggests in a footnote that jurisdictional discovery might reveal that the Reinsurer
Defendants do enough business in the District of Columbia to give me general jurisdiction. Pl.’s
Opp. to Reinsurer Defs.’ Mots. Dismiss 12 n.5. But this conjecture does not provide grounds for
discovery. See FC Inv. Grp. V. IFX Markets, Ltd., 529 F.3d 1087, 1094 (D.C. Cir. 2008).
7
The “transacting any business” prong of the District’s long-arm statute has the full reach
permitted by the Due Process Clause. Thompson Hine, 734 F.3d at 1189. This forecloses the
Reinsurer Defendants’ argument that the long-arm statute does not reach them because they lack
a physical presence in the District of Columbia and did not negotiate the reinsurance contracts
while physically present in the District. First Reinsurer Defs.’ Memo. ISO Mot. Dismiss 13.
6
“substantial connection” with the forum state, the law ensures the foreseeability of a court’s
exercise of jurisdiction. Id. at 474-75.
The Reinsurer Defendants are commercial actors who purposefully directed their
activities at ART, a resident of the District of Columbia. See Compl. Ex. 4. 8 They did so by
entering reinsurance contracts that created continuing obligations to ART. See id. ¶ 52, 65-66. It
appears that ART was domiciled in the District of Columbia when the Reinsurer Defendants
contracted with it, when it paid premiums to the Reinsurer Defendants, and when it experienced
the risk that the reinsurance plans covered. See id. Ex. 4 (establishing the District of Columbia
as ART’s place of domicile); see also Compl. ¶ 122 (referencing premiums paid by ART to
reinsurers). This establishes a substantial connection between the Reinsurer Defendants and the
District of Columbia that does not result from random or fortuitous occurrences and that makes it
reasonably foreseeable that a lawsuit related to the contracts would be brought in the District.
See Burger King, 471 U.S. at 474-75; McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957).
To be sure, as the Reinsurer Defendants point out, “merely entering into a contract with
an out-of-state party does not constitute the kind of purposeful availment that subjects a
defendant to the laws of the other party’s home state.” Katopothis v. Windsor-Mount Joy Mut.
Ins. Co., 211 F. Supp. 3d 1, 22 (D.D.C. 2016). But “under some circumstances the terms of a
contract may well create such a substantial connection between the non-resident and the forum
8
One of the Reinsurer Defendants’ Motions to Dismiss describes ART as “an entity located
outside the District of Columbia” but cites no evidence to support this characterization. First
Reinsurer Defs.’ Memo. ISO Mot. Dismiss 15 (questioning ART’s connection to the District of
Columbia for due process purposes, but not under the long-arm statute). The other motion
acknowledges that ART is incorporated in the District, but cites a website listing the address of
ART’s similarly named parent company to suggest that the company is located in New York.
Second Reinsurer Defs.’ Memo. ISO Mot. Dismiss 11 & n.8. The uncontroverted record
evidence shows that ART is domiciled and licensed in the District of Columbia. Compl. Ex. 4.
7
that the contract alone could supply the necessary minimum contacts.” Thompson Hine, 734
F.3d at 1193. And a single insurance contract provides sufficient basis for personal jurisdiction
when, as here, the insurance company purposefully enters a contract with, receives payments
from, and insures a risk experienced by a forum resident. McGee, 355 U.S. at 223 (emphasizing
the forum state’s “manifest interest in providing effective means of redress for its residents when
their insurers refuse to pay claims”); see also Travelers Health Assoc. v. Va. State Corp.
Comm’n, 339 U.S. 643, 647 (1950) (“[A] state has a legitimate interest in all insurance policies
protecting its residents against risks, an interest which the state can protect even though the state
action may have repercussions beyond state lines.”); id. at 648 (noting the “great weight”
accorded to a state’s interest in enforcing its residents’ insurance contracts). The reinsurance
contracts fall under this rule because reinsurance is simply “insurance for insurance companies.”
See Validus Reinsurance, Ltd. v. United States, 19 F. Supp. 3d 225, 227 (D.D.C. 2014). Thus, I
have specific jurisdiction over Vantage’s claims against the Reinsurer Defendants.
3. Vantage Has Not Asserted the Court’s Jurisdiction Through Proper Service
“Before a federal court may exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be satisfied.” Omni Capital Int’l, Ltd. v.
Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). Vantage tried to serve the Reinsurer
Defendants through their law firm, Mendes & Mount, which it argues was their authorized agent
for service of process under Federal Rule of Civil Procedure 4(h)(1)(B). Pl.’s Opp. to Reinsurer
8
Defs.’ Mots. Dismiss 21-22. 9 This view finds some support in the reinsurance contracts, which
authorize service on Mendes & Mount. Compl. Ex. 7 Art. XXVI; id. Ex. 8 Art. XXVI. 10
But the Reinsurer Defendants deny that Mendes & Mount is their authorized agent for
service of process. First Reinsurer Defs.’ Memo. ISO Mot. Dismiss 15-17; Second Reinsurer
Defs.’ Memo. ISO Mot. Dismiss 12-13. They claim that the service provision in the reinsurance
contracts authorizes service only if ART sues the reinsurers to compel arbitration or to enforce an
arbitral award. First Reinsurer Defs.’ Memo. ISO Mot. Dismiss 17; Second Reinsurer Defs.’
Memo. ISO Mot. Dismiss 13. And they are right that the contracts’ service provision is not a
general authorization of Mendes & Mount to receive service of process in all cases. 11 The
clearest limitation on the service of suit provision is that it “shall not be read to conflict with or
override the obligations of the parties to arbitrate their disputes” under the contracts’ arbitration
clause. Compl. Ex. 7 Art. XXVI; id. Ex. 8 Art. XXVI.
Thus, Vantage can only serve the Reinsurer Defendants through Mendes & Mount if it is
entitled to rely on the service clause and can maintain its lawsuit without violating the arbitration
9
Vantage also makes passing reference to the fact that it served the Willis Defendants, which
Vantage alleges the Reinsurer Defendants have identified as their “intermediaries/agents.” Id. at
21-22. But they do not offer any reason for treating the Willis Defendants as the Reinsurer
Defendants agents for service of process, which is the only relevant agency here.
10
Vantage notes that this appears to be a standard provision in policies issued by at least some
of the reinsurers but does not explain how the fact is directly relevant. Pl.’s Opp. to Reinsurer
Defs.’ Mots. Dismiss 22. It also argues that the Reinsurer Defendants have conceded that
Mendes & Mount is their authorized agent for service of process but cites portions of their
Motions to Dismiss that do not in fact concede the point. Id.
11
The service provision authorizes service “in such suit” but does not define what types of suits
it contemplates. Compl. Ex. 7 Art. XXVI; id. Ex. 8 Art. XXVI. The immediate context sheds
limited light on the question, stating that the service provision “is intended as an aid to
compelling arbitration or enforcing such arbitration or arbitral award” and that the reinsurer will
submit to the jurisdiction of court if it fails “to pay any undisputed amount claimed to be due
hereunder.” Compl. Ex. 7 Art. XXVI; id. Ex. 8 Art. XXVI.
9
clause of the reinsurance contracts. 12 The Reinsurer Defendants argue that any legal theory
allowing Vantage to invoke the benefits of the reinsurance contracts would also require it to
submit its claims to arbitration. First Reinsurer Defs.’ Memo. ISO Mot. Dismiss 21-24; Second
Reinsurer Defs.’ Memo. ISO Mot. Dismiss 17-18. Vantage responds that it is not seeking the
benefit of the reinsurance contracts but is instead seeking to enforce “a direct contractual
relationship with the Reinsurers that is separate and apart from the Reinsurance Agreements.”
Pl.’s Opp. to Reinsurer Defs.’ Mots. Dismiss 28.
But Vantage cannot show that it has a direct contractual relationship with the Reinsurer
Defendants. Vantage’s argument depends almost completely on a single, unreported, out-of-
circuit district court opinion that is distinguishable. Pl.’s Opp. to Reinsurer Defs.’ Mots. Dismiss
23-27. 13 In it, the Southern District of New York used a two-part test to determine that a
reinsurer was directly liable to an insured. See World Omni Fin. Corp. v. Ace Capital Re, Inc.,
2002 WL 3101669 at *2 (S.D.N.Y. Sept. 10, 2002). First, it asked “whether the reinsurance
agent was the ultimate, consistent reimburser of losses of the insured.” Id. Second, it asked
“whether this status was conveyed to the insured.” Id.
12
Vantage does not address why it is entitled to rely on service provisions in reinsurance
contracts to which it is not a party and, for this reason alone, has failed to carry its burden of
establishing jurisdiction. But because the Defendant Reinsurers have not offered any argument
to support their assertion that the service provision only authorizes service by ART, I will go on
to evaluate alternative jurisdictional infirmities on which their briefing sheds more light.
13
Vantage also includes citations to three treatises and to a second out-of-circuit district court
opinion. Id. It cites the treatises to suggest that reinsurers may be directly liable to the insured if
they convey that intention or if the original insurer acted as a “front.” Id. at 23, 24 n.13. It cites
the district court opinion to show that post-contract conduct can abrogate or modify a reinsurance
contract, resulting in a new contract that cuts out the intermediary insurer. Id. at 25 (citing Exec.
Risk Indem., Inc. v. Charleston Area Med. Ctr., Inc., 681 F. Supp. 2d 694, 723-34 (S.D. W. Va.
2009)). Here, Vantage does not argue post-contract conduct established a new contractual
relationship. See id.
10
While this test may seem favorable to Vantage, the insured in World Omni had a clear
understanding that the direct insurance company “was not intended to retain any risk” and that
the reinsurance company was the only reimburser of losses. Id. at *1-2. The reinsurer actually
negotiated the basic terms of the insurance contract with the insured before the direct insurance
company was even created. Id. at *1. Then it had the insured’s parent company create the direct
insurance company, which “[was] minimally capitalized, [had] never been an independent
operating insurance company, and [had] never had the ability to engage in independent
underwriting or claims-handling activities.” Id. The reinsurance company assumed 100% of the
insurer’s liability and consistently dealt with the insured directly as if it were a direct insurer. Id.
Vantage has not alleged facts showing that this is a similar case. It points to allegations
in the Complaint that ART was created to access the reinsurance market, that ART retained 10%
of the risk it insured for Vantage, that ART had to identify its reinsurers to get Vantage to buy
the insurance policy, that ART made it possible for the reinsurers to make money off the direct
insurance policy that ART sold Vantage, and that the reinsurers relied on information about
Vantage that they received from the Willis Defendants. Pl.’s Opp. to Reinsurer Defs.’ Mots.
Dismiss 24, 26. It also notes its allegation that, during arbitration, a witness testified that
payment of any arbitration award would be between the reinsurers and Vantage. Id. at 25. And
it makes a few new claims that are not supported by citations to the Complaint or to record
evidence. Id. at 25-26. But the allegations in the Complaint do not overcome the general rule
that a reinsurer does not have a direct contractual relationship with the original insured unless the
terms of the reinsurance agreement create such a relationship. See Bruckner-Mitchell v. Sun
Indem. Co. of New York, 82 F.2d 434, 444 (D.C. Cir. 1936). In fact, some allegations simply
describe how reinsurance works. Unlike in World Omni, there are no allegations that show the
11
Reinsurer Defendants were the true parties dealing with Vantage and that the direct insurer was
simply created as a straw at their behest.
Because Vantage cannot show a direct contractual relationship with the Reinsurer
Defendants, its effort to evade the reinsurance contracts’ arbitration clause fails. Because it
cannot evade the arbitration clause, which limits the contracts’ service of process clause, it
cannot serve the Reinsurer Defendants through Mendes & Mount. And because it cannot serve
the Reinsurer Defendants through Mendes & Mount, it has not validly asserted the Court’s
personal jurisdiction over them. See Omni Capital, 484 U.S. at 104.
Vantage has asked that, if I determine that service on Mendes & Mount was ineffective, I
exercise my discretion to grant it an extension of time to accomplish service in the interest of
justice. Pl.’s Opp. to Reinsurer Defs.’ Mots. Dismiss 22-23. But Vantage itself has recognized
that “[t]he question of service is inextricably intertwined with the merits.” Id. at 22. Service on
Mendes & Mount was ineffective because Vantage seeks to assert rights under a direct contract
with the reinsurers that does not exist. This determination goes both to jurisdiction and to the
merits, making an extension of time to accomplish service futile. Because Vantage has failed to
carry its burden of establishing personal jurisdiction, I will immediately grant the Reinsurer
Defendants’ Motions to Dismiss. See Crane, 894 F.2d at 456.
B. Vantage Has Only Stated Negligence Claims Against the Willis Defendants
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a
complaint must contain sufficient factual allegations that, if true, “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility
requires that a complaint raise “more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pleading facts that are “merely
12
consistent with” a defendant’s liability “stops short of the line between possibility and
plausibility.” Twombly, 550 U.S. at 545-46.
Thus, a court evaluating a motion to dismiss for failure to state a claim does not accept
the truth of legal conclusions or “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. That said, it construes the
complaint in the light most favorable to the plaintiff and accepts as true all reasonable inferences
drawn from well-pled factual allegations. See In re United Mine Workers of Am. Emp. Benefit
Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994). Consideration is limited to “the facts alleged
in the complaint, any documents either attached to or incorporated in the complaint and matters
of which [the court] may take judicial notice.” Hurd v. D.C. Gov’t, 864 F.3d 671, 678 (D.C. Cir.
2017). The moving party bears the burden of showing the complaint’s insufficiency. Cohen v.
Bd. of Trs. of the Dist. of Columbia, 819 F.3d 476, 481 (D.C. Cir. 2016).
Before evaluating the parties’ claim-specific disputes, I note two preliminary matters.
First, the parties dispute whether the law of the District of Columbia or the law of the United
Kingdom applies to Willis Limited. Willis Defs.’ Memo. ISO Mot. Dismiss 8 n.3, 10 n.4; Pl.’s
Opp. to Willis Defs.’ Mot. Dismiss 12 n.7, 16 n.9. As they identify no material difference and
focus mainly on the District of Columbia’s law, I apply that law.
Second, the Willis Defendants argue that Vantage’s Complaint is defective because it
asserts its claims against the Willis Defendants collectively without distinguishing among them.
Willis Defs.’ Memo. ISO Mot. Dismiss 17. But the cases on which the Willis Defendants rely to
show that collective pleading is inadequate dealt with collective allegations against unrelated
defendants. See Toumazou v. Turkish Republic of N. Cyprus, 71 F. Supp. 3d 7, 21 (D.D.C.
2014); Bender v. N. Am. Telecomm., Inc., 750 F. Supp. 2d 1, 6-7 (D.D.C. 2010). The reason
13
courts dismiss claims in situations like this is that “a plaintiff must provide each defendant with
fair notice of each claim and its basis.” Toumazou, 71 F. Supp. 3d at 21. And the Willis
Defendants have cited no authority showing that this concern applies when the defendants are
part of a single enterprise that happens to be organized into distinct but related corporations as
appears to be the case here. Because the Willis Defendants have not shown that the Complaint
gives them inadequate notice of Vantage’s claims against them, I now consider each claim in
turn.
1. Vantage Has Failed to State a Claim for Breach of Contract
To state a claim for breach of contract, a plaintiff must allege facts showing that a
contract between the parties exists. Francis v. Rehman, 110 A.3d 615, 620 (D.C. 2015). 14
According to Vantage, “[t]he Complaint alleges that an agency agreement was formed when
Willis collectively undertook to serve as the captive manager for ART PCC, and as the
reinsurance intermediary, and particularly when it agreed to convey information at Vantage’s
request to the Reinsurer Defendants.” Pl.’s Opp. to Willis Defs.’ Mot. Dismiss 13. But none of
the paragraphs in the Complaint that Vantage cites show that the Willis Defendants undertook a
contractual obligation to Vantage that they would transmit information to the reinsurers at
Vantage’s request. See Compl. ¶¶ 73-80, 174. And any agency agreement that the Willis
Defendants entered when they undertook to act as ART’s captive manager and to act as an
intermediary between ART and its reinsurers was an agreement between the Willis Defendants
and ART—not an agreement between the Willis Defendants and Vantage.
14
Vantage expressly disavows any breach of contract claim as a third-party beneficiary of any
contracts between the Willis Defendants and ART. Pl.’s Opp. to Willis Defs.’ Mot. Dismiss 12
n.6.
14
But Vantage argues that the District of Columbia’s contract law allows a plaintiff to
“bring an action against an insurance company’s agent or intermediary for failure to obtain
requested insurance.” Pl.’s Opp. to Willis Defs.’ Mot. Dismiss 12-13. This argument fails for
two reasons. First, Vantage has not sought to bring an action against the Willis Defendants for
failure to obtain requested insurance. The only breach of contract that Vantage alleges against
the Willis Defendants is failure “to provide timely and sufficient information regarding
Vantage’s loss” to the reinsurers. Compl. ¶ 174.
Second, Vantage has not shown that its relationship with the Willis Defendants is
analogous to the relationship between the plaintiff and the insurance broker in the cases on which
it relies. In Zitelman and Adkins, the plaintiffs formed contract relationships with their insurance
brokers by calling the brokers directly and obtaining assurances from the brokers that they would
arrange for them to be insured. Zitelman v. Metro. Ins. Agency, 482 A.2d 426, 427 (D.C. 1984);
Adkins & Ainley, Inc. v. Busada, 270 A.2d 135, 136-37 (D.C. 1970). 15 These cases establish that
a plaintiff may sue an insurance broker who has directly contracted with the plaintiff to act as the
plaintiff’s agent. 16 They do not establish that a plaintiff may sue an insurance broker who has
15
Vantage also cites to Hayes, a case in which the plaintiff was the third-party beneficiary of a
contract between his employer and a broker who agreed to find medical malpractice insurance
that would cover the doctor. Hayes v. Chartered Health Plan, 2006 WL 2983013, *2-3 (D.D.C.
2006). But, as noted above, Vantage asserts no claim as a third-party beneficiary of a contract
between Art and the Willis Defendants. Pl.’s Opp. to Willis Defs.’ Mot. Dismiss 12 n.6.
16
Even under these circumstances, it is not clear that District law allows a breach of contract
claim. Each of the cases Vantage cites recognized a tort claim. Hayes, 2006 WL 2983013 at *3;
Zitelman, 482 A.2d at 427 n.1; Adkins, 270 A.2d at 136. It is true that Hayes, which is not a
binding authority on District law, cites Zitelman and two treatises to suggest that the plaintiff
could have brought his negligence claim as a breach of contract claim. Hayes, 2006 WL
2983013 at *3. But Zitelman suggested the possibility of a contract claim only in dicta, relying
on a footnote in Adkins. Zitelman, 482 A.2d at 427 n.1. And the footnote in Adkins merely
observes that “[i]t has been suggested” that courts should allow recovery in contract as well as in
tort without deciding the question. Adkins, 270 A.2d at 137 n.1. This is a question that I need
15
contracted with the plaintiff’s insurer to act as the insurer’s agent. For both these reasons,
Vantage has failed to state a contract claim.
2. The Willis Defendants Have Not Adequately Challenged Vantage’s Negligence,
Professional Negligence, and Negligent Undertaking Claims
The Willis Defendants construe Vantage’s negligence, professional negligence, and
negligent undertaking claims as “virtually identical.” Willis Defs.’ Memo. ISO Mot. Dismiss 10;
see also id. at 11 (citing the elements of negligence to prove the elements of negligent
undertaking). 17 The only element of these claims that the Willis Defendants challenge in their
Motion to Dismiss is the existence of a duty that they owed to Vantage. See Willis Defs.’
Memo. ISO Mot. Dismiss 10-15. 18 But they do not offer any clear standard for determining
when a duty exists or satisfy their burden of showing the Complaint’s inadequacy.
not decide since Vantage’s arguments fail on the alternative grounds discussed above. As a
federal court sitting in diversity, I decline to reach this question of District law.
17
The Willis Defendants do offer one distinct argument about professional negligence,
suggesting in a footnote that District law may not recognize a professional negligence cause of
action against a captive manager or reinsurance intermediary. Id. at 11 n.5. But professional
negligence is not a cause of action limited to specific industries. Pl.’s Opp. to Willis Defs.’ Mot.
Dismiss 15 n.8. A professional negligence action is essentially an ordinary negligence action in
which the duty of reasonable care reflects the defendant’s “specialized training and experience.”
Morrison v. MacNamara, 407 A.3d 555, 560-61 (D.C. 1979). And Vantage has alleged facts
supporting an inference that the Willis Defendants have specialized training and experience that
justify a heightened standard of conduct. See Compl. ¶¶ 32-36.
18
In their reply brief, the Willis Defendants raise an argument not addressed in their motion to
dismiss. They suggest that District law does not allow recovery of pure economic loss on any of
the negligence theories that Vantage proposes. Willis Defs.’ Reply ISO Mot. Dismiss 10-12.
This issue may justify future briefing, but I decline to resolve the issue now given the apparently
ambiguous state of District law and the fact that Vantage has not had the opportunity to respond
to this new argument. See Intelect Corp. v. Cellco P’ship GP, 160 F. Supp. 3d 157, 184-185
(D.D.C. 2016) (declining to decide the applicability of the economic loss rule on a motion to
dismiss but inviting later briefing when the issue was inadequately briefed because “the contours
of the economic loss rule are nuanced” and the District of Columbia Court of Appeals has
provided little guidance on its interpretation of the rule).
16
The Willis Defendants raise separate arguments to show that none of the three Willis
entities owed a duty. First, the Willis Defendants argue that Willis Captive Management’s role
in managing administrative tasks for ART did not create any duties toward Vantage. Id. at 11-
12. 19 In support of this argument, they claim that Vantage’s Complaint does not allege that
Willis Captive Management had any contact with Vantage or undertook to provide any services
to Vantage. Id. 11. 20 But the Complaint alleges that Aiden Kelly, a Willis Captive Management
employee, signed credit insurance binders provided to Vantage to confirm that ART’s insurance
policy was backed by reinsurance ceded on the same terms as the original insurance policy.
Compl. ¶¶ 43-45, 47-48, 51; see also Reply ISO Willis Defs.’ Mot. Dismiss 8.
The Willis Defendants argue that they had no legal connection to Mr. Kelly’s action
because he signed the binders as ART’s authorized representative. Id. at 6, 8. But Mr. Kelly
appears to have been acting as ART’s representative because he was an employee of ART’s
captive manager, Willis Captive Management. The Willis Defendants cite no facts or legal
authority to show that Mr. Kelly’s role as ART’s representative and his role as a Willis Captive
Management employee are mutually exclusive, so that his acts on ART’s behalf cannot also be
attributed to Willis Captive Management. 21 Contrary to the Willis Defendants’ argument,
19
The Complaint does not name Willis Captive Management as a defendant, but the parties
appear to treat this as an alternate name for Defendant Willis Towers Watson Management
(Vermont), Ltd.
20
The Willis Defendants also argue that Willis Captive management had no duties toward
Vantage because they continued working with ART after Vantage’s insurance policy expired.
Id. at 12. But this conclusion does not follow and is not supported by authority.
21
In fact, their Motion to Dismiss does not cite any authority to show that Willis Captive
Management did not owe a duty to Vantage. Willis Defs.’ Memo. ISO Mot. Dismiss 11-12.
Their Reply seeks to distinguish the cases on which Vantage relies by noting that they involved
damages for physical injuries. Reply ISO Willis Defs.’ Mot. Dismiss 7-11. But this argument
about the type of damages that are available does not show the absence of a duty arising from
17
Vantage has alleged facts that at least support a reasonable inference of contact with Willis
Captive Management.
Second, the Willis Defendants argue that Willis Limited’s role as ART’s reinsurance
intermediary did not establish any duties toward Vantage. Willis Defs.’ Memo. ISO Mot.
Dismiss 12-15. As with Willis Captive Management, they claim that Vantage’s Complaint does
not allege that Willis Limited had any contact with Vantage or undertook to provide any services
to Vantage. 22 But the Complaint alleges that Willis Limited undertook to transmit “all
communications and payments” related to the reinsurance contracts, knowing that the
reinsurance was intended to provide for Vantage’s compensation in the event of a covered loss,
knowing that Vantage considered the reinsurance essential, and intending for Vantage to rely on
the representations in the credit insurance binders. Compl. ¶¶ 43, 53-54, 73-75, 78-80. The
Complaint also supports the inference that ART had an obligation to Vantage to find reinsurance
and that Willis Limited undertook to help ART discharge this obligation. See id. ¶¶ 39, 42-43.
The Willis Defendants note that these undertakings were contractual obligations to ART but do
not explain why they cannot also be tort obligations to Vantage. Willis Defs.’ Memo. ISO Mot.
Dismiss 12-15.
Mr. Kelly’s representations to Vantage that could be actionable in a negligence, professional
negligence, or negligent undertaking claim. See WMATA v. Ferguson, 977 A.2d 375, 377 (D.C.
2009) (listing “a duty of care owed by the defendant to the plaintiff” and “damage to the interests
of the plaintiff” as separate elements of a negligence claim); see also District of Columbia v.
McNeill, 613 A.2d 940, 942-43 (D.C. 1992) (noting that physicians owe patients a duty of care
although damages are not available for all injuries resulting from a breach of this duty).
22
They also argue that Willis Limited owed no duty to Vantage because its work for ART was
not “directed solely to protecting Vantage’s interests” and continued after Vantage’s insurance
policy expired. Id. at 13. Once again, this conclusion does not follow.
18
Vantage has made at least a preliminary showing that Willis Limited’s contractual
undertakings created tort duties owed to Vantage. Pl.’s Opp. to Willis Defs.’ Mot. Dismiss 16-
18. Under District law, a person who undertakes to render services to one party “which he
should recognize as necessary for the protection of a third person or his things” has a duty of
reasonable care to the third party. See, e.g., Presley v. Commercial Moving & Rigging, Inc., 25
A.3d 873, 889 (D.C. 2011) (quoting Restatement (Second) of Torts § 324A). Such a person can
be liable to a third party if his failure to exercise reasonable care increases the risk of harm or if
he has undertaken to perform a duty that the person he is serving owed to the third party. Id. 23
The cases that the Willis Defendants cite to the contrary are inapposite. See Cambridge
Holdings Grp., Inc. v. Fed. Ins. Co., 489 F.3d 1356, 1358-59 (D.C. Cir. 2007) (addressing
contract claims rather than tort claims); Car Sense, Inc. v. Am. Special Risk, LLC, 56 F. Supp. 3d
686 (E.D. Pa. 2014) (recognizing that a reinsurance intermediary can owe tort duties to third
parties but denying negligent misrepresentation claim by a plaintiff who was not a party to the
insurance or reinsurance contracts and who did not rely on the intermediary’s representations).
Third, the Willis Defendants assert that the Complaint contains no allegations against
Willis Re Inc. But the Complaint makes the same allegations about Willis Re Inc.’s role as a
reinsurance intermediary that it makes about Willis Limited. Compl. ¶¶ 39, 42-43, 53-54, 73-75,
78-80. 24 So this challenge to the adequacy of the Complaint also fails. Mindful that all
23
Although the Restatement limits damages to a recovery for physical harm, it is not clear
whether District law has such a limitation. See Intelect Corp., 160 F. Supp. 3d at 185. In any
case, the availability of damages does not go to the Willis Defendants’ argument about the
existence of a duty.
24
The Complaint also alleges that Brian Stewart, the Executive Director of Willis Re Inc., told
ART he would notify the reinsurers about Vantage’s notice of default and that ART believed
Mr. Stewart would keep the reinsurers informed about Vantage’s arbitration with ART. ¶¶ 31,
83, 115. This may be probative of Willis Re Inc.’s undertaking to act as intermediary or of
19
reasonable inferences must be drawn in favor of the Plaintiff at this stage, In re United Mine
Workers, 854 F. Supp. at 915, I find that none of the Willis Defendants’ arguments show that
Vantage has not alleged facts establishing that they owed it a duty that is actionable in
negligence, professional negligence, or negligent undertaking.
3. The Willis Defendants Have Not Adequately Challenged Vantage’s Negligent
Misrepresentation Claim
The Willis Defendants challenge Vantage’s negligent misrepresentation claim on two
grounds. First, they argue that the Complaint does not satisfy the heightened pleading
requirements of Federal Rule of Civil Procedure 9(b), which requires a statement of the “time,
place and content of the false misrepresentations, the fact misrepresented and what was retained
or given up as a consequence of the fraud, as well as the individuals involved.” Willis Defs.’
Memo. ISO Mot. Dismiss at 16; see also Lemon v. Kramer, 270 F. Supp. 3d 125, 144 (D.D.C.
2017). Second, they argue that the Complaint does not allege facts showing that Vantage
reasonably relied on any misrepresentations that they made. Willis Defs.’ Memo. ISO Mot.
Dismiss 15-16; see also In re United States Office Prods. Co. Secs. Litig., 251 F. Supp. 2d 58, 74
(D.D.C. 2003).
But the Complaint satisfies these requirements for several alleged misrepresentations.
Most important, the Complaint alleges that Willis Captive Management employee Aiden Kelly
signed credit insurance binders on December 28, 2012 and August 19, 2013, representing to
Vantage that the reinsurance policies ceded ART’s liability “on the same terms, conditions, and
settlements as the original policy.” Compl. ¶¶ 47, 51, 183. It also alleges that this representation
Vantage’s reasonableness in relying on Willis Re Inc. as an intermediary, but it does not appear
to be directly relevant. The Willis Defendants claim that Mr. Stewart worked for Willis Limited
and not work for Willis Re Inc., but their unsupported claim does not satisfy their burden. Reply
ISO Willis Defs.’ Mot. Summary J. 14.
20
is false because the reinsurance policies limited the reinsurers’ obligations to ART and required
arbitration. Id. ¶¶ 69-70. Relatedly, the Complaint alleges that the Willis Defendants failed to
disclose to Vantage that the reinsurance agreements contained terms that conflicted with the
representations in the credit insurance binders, so that a loss covered under the insurance policy
might not be recoverable by Vantage from the reinsurers. Id. ¶¶ 69, 165, 170, 179, 183. 25 The
Complaint alleges that Vantage would have tried to insure its risk in other ways except that it
reasonably relied on these affirmative misrepresentations and misrepresentations by omission, as
the Willis Defendants intended it to do. Id. ¶¶ 54, 186.
These allegations are inadequate in three ways, according to the Willis Defendants. First,
they claim that the statements in the credit insurance binders are not attributable to Willis
Captive Management because Mr. Kelly signed them as ART’s representative and that the
statements have even less connection to the other Willis Defendants. Reply ISO Willis Defs.’
Mot. Dismiss 15-16. But I have already rejected the argument that Willis Captive Management
bears no responsibility for the insurance binders, and the Complaint alleges that all the Willis
Defendants misled Vantage by intentionally allowing it to rely on the binders and failing to
provide Vantage material information. Compl. ¶¶ 54, 69, 165, 170, 179, 183.
Second, the Willis Defendants claim that the Complaint fails to specify who at Vantage
received, reviewed, and relied on the binders. Reply ISO Willis Defs.’ Mot. Dismiss 16-17. But
the precedent on which they rely does not contain such a requirement. See In re Office Prods.,
251 F. Supp. 2d at 74 (requiring that a complaint allege facts showing that “the plaintiffs
reasonably and to their detriment relied on the false information”). The Complaint adequately
alleges that the Plaintiff, a legal person, relied on the binders. Compl. ¶ 55.
25
An omission may constitute a negligent misrepresentation. Intelect, 160 F. Supp. 3d at 186.
21
Third, the Willis Defendants claim that the Complaint fails to allege facts showing that
the representations in the credit insurance binders were false. Reply ISO Willis Defs.’ Mot.
Dismiss 17. But as I have already observed, the Complaint alleges that the binders falsely
claimed that the reinsurance policies ceded ART’s liability on the same terms as the original
policy when in fact the reinsurance policies limited the reinsurers’ obligations to ART and
required arbitration. Compl. ¶¶ 47, 51, 69-70, 183. So I must reject this challenge to the
adequacy of Vantage’s allegations about the insurance binders and about the Willis Defendants’
misrepresentations, as I have rejected the others.
The Willis Defendants unpersuasively challenge the adequacy of Vantage’s allegation
that they negligently failed to disclose that they would not convey information about Vantage’s
loss to the reinsurers. The Willis Defendants argue that Vantage failed to identify who made the
misrepresentation to whom and at what time. Reply ISO Willis Defs.’ Mot. Dismiss 17 n.4. But
the Complaint alleges that when the reinsurance contracts promised that the Willis Defendants
would convey “all communications and payments” related to the contracts. Compl. ¶¶ 74. And
the Complaint alleges facts supporting an inference that this statement was false at least by the
time that Vantage experienced the insured loss. Id. ¶¶ 139, 146 (noting that the reinsurers denied
coverage because Willis failed to provide information them information about Vantage’s loss
and that the Reinsurer Defendants said Willis had not been able to confirm that it provided any
communications). From that time forward, the Willis Defendants’ failure to correct the
statement arguably constituted an ongoing misrepresentation to Vantage. 26
26
In a footnote, the Willis Defendants also challenge the legal sufficiency of Vantage’s
argument that it reasonably relied on this misrepresentation. Reply ISO Willis Defs.’ Mot.
Dismiss 17 n.4. But the Willis Defendants offer no reason to question the reasonableness of
Vantage’s reliance, which reflects the fair assumption that they would follow their contractual
obligations when they had not said otherwise. This does not satisfy their burden.
22
III. CONCLUSION
For the reasons stated above, the Reinsurer Defendants’ Motions to Dismiss will be
granted and the Willis Defendants’ Motion to Dismiss will be granted as to Vantage’s contract
claims but denied as to Vantage’s negligence claims. A separate order will issue.
2018.08.06
16:50:57 -04'00'
Dated: August 6, 2018 TREVOR N. MCFADDEN, U.S.D.J.
23