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Case Briefs
Arbitration Clause Strictly Enforced Only Where Parties' Intent to Arbitrate is Clear
In BCS Insurance Co. v. Wellmark, Inc., 2005 U.S. App. LEXIS 9981 (7th Cir. June 1, 2004), the Seventh Circuit considered whether: 1) an arbitration provision in an insurance policy allowing arbitration of disputes “at the option of the insured,” required arbitration of coverage disputes, and 2) a “relation back” policy provision allowed the insurer to rely upon a “mandatory” arbitration provision contained in an earlier policy issued to the same insured.
The policy at issue in Wellmark was the third of three annual errors and omissions policies issued by BCS to Wellmark between 1994 and 1997. The 1994-1996 policies contained mandatory arbitration provisions. However, the 1997 policy arbitration provision stated: “Any controversy arising out of or relating to this Policy or the breach thereof shall, at the option of the Participant Insured, … be settled by binding arbitration.” The policy also contained a “relation back” clause in its “Limits of Liability” section, which stated:
All Claims based upon, arising out of, directly or indirectly resulting from, …or in any way involving the same Wrongful Act … shall be deemed to be a single Claim made at the time the earliest such Claim is made.
Wellmark was sued in four class action lawsuits brought between 1994 and 1997 and alleging that Wellmark “made illegal profits” based upon certain undisclosed agreements. Wellmark settled the claims, sought coverage from and ultimately sued, BCS. Given the arbitration provisions in the 1994-96 policies, the parties agreed to arbitrate their coverage dispute regarding claims against Wellmark during those policy periods. BCS also attempted arbitrate the claims made during the 1997 policy year. To support its position, BCS first argued that “because the policy contains an arbitration clause, a 'federal presumption of arbitration' applies.” The court disagreed and held that the language of the parties' agreement determines arbitrability, and “[w]hile ambiguities in the language of the agreement should be resolved in favor of arbitration, we do not override the clear intent of the parties, or reach a result inconsistent with the plain text of the contract, simply because the policy favoring arbitration is implicated.” The court thus concluded that because the parties unambiguously agreed to arbitrate disputes “at the option of the insured,” the clear policy language could not “be overridden 'by a presumption of arbitration' to force mandatory arbitration upon the insured where only optional arbitration was specified.”
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.