Date: 11-21-2015

Case Style: Odyssey Reinsurance Company v. Cal-Regent Insurance Services Corporation

Case Number: 14-458

Judge: Victor A. Bolden

Court: United States District Court District of Connecticut

Plaintiff's Attorney: James J. Reardon, Jr

Defendant's Attorney: Thomas O. Farrish, James Webster Oliver, Sylvia Marisa Ho

Description: The Court presumes familiarity with the undisputed facts, which are set forth in
the August Ruling. ECF No. 100 at 2-8. The Court adopts the defined terms used in
the August Ruling. III. STANDARD OF REVIEW
The court shall grant summary judgment if there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). “[T]he moving party bears the burden of showing that he or she is entitled to
summary judgment.” United Transp. Union v. Nat’l R.R. Passenger Corp., 588 F.3d
805, 809 (2d Cir. 2009). Once the moving party has satisfied that burden, in order to
defeat the motion, “the opposing party must come forward with specific evidence
demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly &
Co., 654 F.3d 347, 358 (2d Cir. 2011).
A dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue of fact is material if it “might affect the outcome of the suit under the
governing law.” Id. Disputes concerning immaterial facts do not prevent summary
judgment. See id.; Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990)
(“[S]ummary judgment cannot be avoided by immaterial factual disputes.”). When ruling
on a motion for summary judgment, the court must construe the evidence in the light
most favorable to the nonmoving party and draw all reasonable inferences in its favor.
Dalberth v. Xerox Corp., 766 F.3d 172, 182 (2d Cir. 2014).
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IV. DISCUSSION
A. Liability
As explained in the August Ruling, Odyssey’s claim for breach of contract is
governed by Texas law. ECF No. 100 at 9-10. To prevail on a breach of contract claim
under Texas law, a plaintiff must establish “(1) the existence of a valid contract; (2)
performance or tendered performance by the plaintiff; (3) breach of the contract by the
defendant; and (4) damages sustained by the plaintiff as a result of the breach.”
Virginia Oak Venture, LLC v. Fought, 448 S.W.3d 179, 192 (Tex. App. 2014). All four
elements are satisfied here.
First, there is no genuine dispute that the parties entered into a series of valid
reinsurance agreements. (See Pl.’s Stmt. ¶¶ 7-8; Def.’s Stmt. ¶¶ 7-8.)
Second, Odyssey alleged in its Complaint that “Odyssey Re has performed all of
its obligations under the Reinsurance Agreement.” Compl. ¶ 40. As explained in the
August Ruling, Federal Rule of Civil Procedure 9(c) placed the burden on Cal-Regent to
deny that allegation with particularity in its Answer, and Cal-Regent failed to do so. ECF
No. 100 at 12-20. The Court gave Cal-Regent limited leave to amend its Answer, but
Cal-Regent chose not to do so. As a result, Odyssey’s allegation is deemed admitted.
See Walton v. Nalco Chem. Co., 272 F.3d 13, 21 (1st Cir. 2001) (“[P]rovided the
complaint includes a general averment that all conditions precedent to suit or recovery
have been met, and the defendant does not deny the satisfaction of the preconditions
specifically and with particularity, then the plaintiff’s allegations are assumed admitted,
and the defendant cannot later assert that a condition precedent has not been met.”)
(internal quotation marks and citation omitted); Jackson v. Seaboard Coast Line R. Co.,
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678 F.2d 992, 1009 (11th Cir. 1982) (“If the party does not deny the satisfaction of the
conditions precedent specifically and with particularity, however, the allegations are
assumed admitted and cannot later be attacked.”); see also E.E.O.C. v. Serv. Temps
Inc., 679 F.3d 323, 331-33 & n.14 (5th Cir. 2012) (defendant’s failure in its answer to
deny with particularity that plaintiff performed condition precedent precluded defendant
from relying on non-performance of that condition precedent at summary judgment);
Ayres v. Baxter, No. Civ. A. 3:99-CV-2641-L, 2001 WL 294224, at *4 (N.D. Tex. Mar.
27, 2001) (where defendants’ answer did not deny with particularity performance of
condition precedent and defendants “inexplicably have made no attempt to amend their
pleading[,]” court held that issue was not preserved for trial, that “plaintiff’s motion for
summary judgment need not demonstrate the absence of a genuine issue of material
fact, but need only state generally that conditions precedent have been satisfied[,]” and
that there was no genuine issue of material fact as to whether plaintiffs performed
condition precedent). Therefore, there is no genuine dispute that Odyssey performed
all of its obligations under the Reinsurance Agreements.
Third, there is no genuine dispute that Cal-Regent breached by failing to pay
commission adjustments to Odyssey. (See Pl.’s Stmt. ¶ 18; Def.’s Stmt. ¶ 18; 2004
Agmt ¶ 11.4(c).)
Fourth, there is no genuine dispute that Odyssey sustained damages as a result
of Cal-Regent’s breach. (See Pl.’s Stmt. ¶¶ 16, 18; Def.’s Stmt. ¶¶ 16, 18.)
No genuine dispute of material fact exists as to Odyssey’s claims for breach of
contract and declaratory judgment, and Odyssey is entitled to judgment as a matter of
law under Fed. R. Civ. P. 56(a).
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B. Damages
1. Commission Adjustments for Underwriting Years 2003, 2004, 2005, and 2007
The commission adjustments due for Underwriting Years 2003, 2004, 2005, and
2007 are as follows:
 $14,828.04 for Underwriting Year 2003;  $83,861.36 for Underwriting Year 2004;  $895,956.92 for Underwriting Year 2005; and  $246,581.44 for Underwriting Year 2007.
(Pl.’s Stmt. ¶ 34; Def.’s Stmt. ¶ 34.)
Accordingly, judgment shall enter in Odyssey’s favor as to Underwriting Years
2003, 2004, 2005, and 2007 in the amount of $1,241,227.76.
2. Commission Adjustment for Underwriting Year 2006
As to Underwriting Year 2006, the amount that Cal-Regent owes Odyssey in
commission adjustment depends in part on whether a debit carry forward from
Underwriting Year 2005 can be applied to “losses incurred” for Underwriting Year 2006.
Cal-Regent maintains that a debit carry forward cannot be applied, (Def.’s Stmt. ¶¶ 28
29), and that the commission adjustment for Underwriting Year 2006 is $453,733.65,
(Pl.’s Stmt. ¶ 25(b); Def.’s Stmt. ¶ 25(b)). Odyssey contends that a debit carry forward
must be applied, and has provided evidence showing that the commission adjustment
for Underwriting Year 2006, after applying the debit carry forward, is $1,499,574.85.
Razzaia Aff. ¶¶ 5-9, 16, ECF No. 61; Razzaia Aff., Ex. 1 at 4, ECF No. 61-1; Razzaia
Aff., Ex. 2 at 1, 83, ECF No. 61-2.
Cal-Regent has not submitted any evidence to counter Odyssey’s calculation of
the Underwriting Year 2006 commission adjustment if a debit carry forward is applied.
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Therefore, if a debit carry forward does apply, there is no genuine dispute that
$1,499,574.85 is due. E.g., Dataserv, Ltd. v. Mgmt. Techs., Inc., No. 90 CIV. 7759
(SWK), 1993 WL 138852, at *3 (S.D.N.Y. Apr. 27, 1993) (“[A]lthough [the defendant]
denies the amount claimed by [the plaintiff] under the Leases, [the defendant] adduces
no evidence to controvert the amount claimed and therefore, fails to raise a genuine
issue of fact with respect to [the plaintiff’s] damages.”); Emanuel v. Barry, No. CV-83
810, 1990 WL 172681, at *2 (E.D.N.Y. Oct. 25, 1990) (granting summary judgment as
to the amount of damages where plaintiffs submitted evidence of damages and
defendant offered no evidence to contradict plaintiffs’ figures).
The Court concludes that the 2004 Agreement requires that the debit carry
forward from Underwriting Year 2005 be applied to “losses incurred” for Underwriting
Year 2006.
In Texas, insurance contracts are interpreted according to the general rules of
contract construction. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.
2003). As a result, this Court “must give effect to all contractual provisions so that none
will be rendered meaningless.” Id. If contract language can be given a certain or
definite meaning, it is not ambiguous and is construed as a matter of law. Id. “An
ambiguity does not arise simply because the parties offer conflicting interpretations.” Id.
“[A]n ambiguity exists only if the contract is susceptible to two or more reasonable
interpretations.” Id. Following these principles, the Court reaches the following
conclusions.
First, the 2004 Agreement applied for purposes of calculating the adjusted
commission for Underwriting Year 2005. (See Pl.’s Stmt. ¶ 28; Def.’s Stmt. ¶ 28.)
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Second, the 2004 Agreement provided that, for purposes of calculating an
adjusted commission, if the loss ratio for an Underwriting Year exceeded 66.5%, then
the difference in percentage points between the loss ratio and 66.5% must be multiplied
by premiums earned for the period, and the product must be carried forward to the “next
adjustment period as a debit (additional) to losses incurred.” (2004 Agmt. ¶ 11.4(b).) It
is undisputed that the loss ratio for Underwriting Year 2005 exceeded 66.5%. (Pl.’s
Stmt. ¶¶ 26-27; Def.’s Stmt. ¶¶ 26-27.) Therefore, the difference in percentage points
between the loss ratio for Underwriting Year 2005 and 66.5% must be multiplied by
premiums earned for the period, and the product must be carried forward to the “next
adjustment period as a debit (additional) to losses incurred.” (2004 Agmt. ¶ 11.4(b).)
Third, the Court must give meaning to the phrase “next adjustment period.”
Schaefer, 124 S.W.3d at 157. The 2004 Agreement does not define “adjustment
period,” but the Court can see no meaning for that term other than “Underwriting Year,”
because the agreement required that commissions “be adjusted for each Underwriting
Year.” (2004 Agmt. ¶ 11.4.) The parties agree that “adjustment period” means
“Underwriting Year.” (See Def.’s Suppl. Br. at 5, ECF No. 91; Pl.’s Reply Mem. at 2,
ECF No. 92.)
Thus, for purposes of calculating the commission adjustment for Underwriting
Year 2005, “next adjustment period” meant Underwriting Year 2006. Therefore, the
difference in percentage points between the loss ratio for Underwriting Year 2005 and
66.5% must be multiplied by premiums earned for the period, and the product must be
carried forward to Underwriting Year 2006 as a debit to “losses incurred.” (See 2004
Agmt. ¶ 11.4(b).)
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Cal-Regent argues that there is no “next adjustment period” when an agreement
is terminated. (See Def.’s Suppl. Br. at 5, ECF No. 91.) However, that reading would
render meaningless the survival provision, paragraph 3.7, as it relates to the carry
forward provision, paragraph 11.4(b), of the 2004 Agreement. Schaefer, 124 S.W.3d at
157 (“[W]e must give effect to all contractual provisions so that none will be rendered
meaningless”). Because the carry forward provision survived termination, the debit
carry forward from Underwriting Year 2005 must be carried forward to Underwriting
Year 2006 as a debit to “losses incurred” despite the termination of the 2004
Agreement.
Cal-Regent also argues that the survival provision applied only with respect to
so-called run-off business, such as post-termination investigation and/or defense of
claims made under policies issued before termination. (Def.’s Suppl. Br. at 5). That
argument is not persuasive. The survival provision in the 2004 Agreement expressly
provided that Article XI – which included the commission calculation and adjustment
provisions – survived termination, and did not exclude the carry forward provision.
(2004 Agmt. ¶ 3.7.)
Fourth, the definition of “losses incurred” contemplates carry forwards. “Losses
incurred” includes, “[a]s respects second and each subsequent Underwriting Year
hereunder, plus (minus) the debit (credit) from the preceding Underwriting Year.”1 (Id. ¶
11.4(f)(iv).)
                                                             1 The 2006 Agreement’s definition of “losses incurred” likewise only allows carry forwards to be applied to the “second and each subsequent Underwriting Year hereunder.” (2006 Agmt. ¶ 11.4(f)(iii).) Underwriting Year 2006 is the first Underwriting Year under the 2006 Agreement. Therefore, a carry forward cannot be applied to “losses incurred” for Underwriting Year 2006 under the 2006 Agreement. However, the 2006 Agreement does not apply for purposes of this analysis because the carry forward in question arose under the 2004 Agreement.  
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The Court must give meaning to the word “hereunder” as it appears in the
definition of “losses incurred.” See Schaefer, 124 S.W.3d at 157. The 2004 Agreement
does not define “hereunder.” Black’s Law Dictionary defines “hereunder” as “[l]ater in
this document . . . In accordance with this document.” Black’s Law Dictionary 844 (10th
ed. 2014). Likewise, the term’s other appearances in the 2004 Agreement suggest that
“hereunder” means “under this agreement.” (See, e.g., 2004 Agmt. ¶ 3.3 (“When this
Agreement terminates for any reason, reinsurance hereunder shall continue to apply to
the business in force at the time and date of termination”).) The Court concludes that
“hereunder,” as it appears in the definition of “losses incurred,” means “under this
agreement.”2
Cal-Regent argues that Underwriting Year 2006 is not an Underwriting Year
“hereunder” as to the 2004 Agreement because Underwriting Year 2006 began on April
1, 2006, the date on which the 2004 Agreement terminated. (See Def.’s Suppl. Br. at 6,
ECF No. 91; Tr. Oral Arg. Pl.’s Mot. Summ. Judg. at 28:17-29:5, ECF No. 95.) Cal
Regent’s argument essentially defines “Underwriting Year hereunder” as a twelve
month period encompassed within the effective period of the relevant agreement. Per
Cal-Regent’s argument, Underwriting Year 2006 was not an Underwriting Year “under”
the 2004 Agreement because its period, April 1, 2006 to April 1, 2007, was outside of
the effective period of the 2004 Agreement, April 1, 2004 to April 1, 2006.
                                                             2 Courts generally interpret “hereunder” the same way. See, e.g., Onadeko v. Rainier Credit Co., 678 F.2d 113, 115 (9th Cir. 1982) (loan document’s use of “hereunder” made it clear that collateral secured only indebtedness arising out of the loan); Grizzard Commc'ns Grp. v. Monk, No. 4:05 CV 3182, 2005 WL 2563046, at *6 (D. Neb. Oct. 11, 2005) (“hereunder” as used in employment agreement meant “under the employment agreement,” consistent with term’s dictionary definition of “under this written statement . . . under this agreement: in accordance with the terms of this document”).
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“Underwriting Year,” however, is defined as “those Policies with inception,
renewal or anniversary date during each 12-month period commencing with each April 1
and all premium attributable to, and all loss arising out of such Policies from such
inception, renewal or anniversary date until expiration, cancellation, or next anniversary,
whichever occurs first, will be ascribed to the Underwriting Year.” (2004 Agmt. ¶
11.4(h).) As a result, each twelve-month period commencing after April 1, 2004 is an
Underwriting Year under the 2004 Agreement to the extent that policies covered by the
2004 Agreement have inception, renewal, or anniversary dates during that period.
Thus, the period April 1, 2006 to April 1, 2007 was an Underwriting Year under the 2004
Agreement, to the extent that policies covered by the 2004 Agreement had inception,
renewal, or anniversary dates during that period. If, during that period, premiums and
losses arose out of policies covered by the 2004 Agreement, and those policies did not
expire or cancel before their anniversary dates occurring within that period, then those
premiums and losses were attributable to that Underwriting Year, Underwriting Year
2006. The debit carry forward from Underwriting Year 2005, which also arose out of the
2004 Agreement and survived its termination, is added to any losses attributable to
Underwriting Year 2006.
This reading of the 2004 Agreement is consistent with the parties’ arrangement:
Odyssey was responsible for paying its share of Cal-Regent’s provisional commission,
(2004 Agmt. ¶ 11.2), and Cal-Regent’s provisional commission was to be adjusted for
each Underwriting Year depending on the loss ratio for the business underwritten by
Cal-Regent. (Id. ¶ 11.4.). In the event that the parties’ agreement terminated, the
survival provision ensured that Cal-Regent would still collect provisional commissions,
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and Odyssey would still receive adjustments of those commissions, including by carry
forward, if significant losses arose out of policies covered by the terminated agreement.
(Id. ¶ 3.7.) Significant losses arose out of a policy covered by the terminated 2004
Agreement, and Cal-Regent is seeking to retain its provisional commission without
proper adjustment, denying Odyssey the benefit of its bargain.
As discussed supra, Odyssey has provided evidence showing that the
commission adjustment for Underwriting Year 2006 after applying the debit carry
forward is $1,499,574.85, and Cal-Regent has not raised a genuine dispute as to that
question. Accordingly, judgment shall enter in Odyssey’s favor as to Underwriting Year
2006 in the amount of $1,499,574.85.
C. Prejudgment Interest, Attorneys’ Fees, and Costs
Odyssey seeks attorneys’ fees, costs, and prejudgment interest “at the
Connecticut statutory rate of 10%.” (Pl.’s Mem. Law Supp. Mot. Summ. Judg. at 17,
ECF No. 57; accord Compl. at 8, ECF No. 1.)
1. Prejudgment Interest
“The awarding of prejudgment interest is considered a question of substantive
law.” Schwimmer v. Allstate Ins. Co., 176 F.3d 648, 650 (2d Cir. 1999); Country Club
Assocs. LLC v. Shaw's Supermarkets, Inc., No. 06-cv-0491 (JCH), 2009 WL 1537952,
at *34 (D. Conn. May 29, 2009) (“In diversity cases, an award of prejudgment interest is
a substantive aspect of the remedy. Therefore, the district court first looks to the
substantive law of Connecticut, including Connecticut's choice of law principles, to
determine which law to apply.”) amended, 643 F. Supp. 2d 243 (D. Conn. 2009).
Having already applied Connecticut’s choice of law principles and determined that the
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substantive law of Texas applies in this case, (ECF No. 100 at 9-10), the Court will
apply Texas law in adjudging Odyssey’s request for prejudgment interest. See Valley
Juice Ltd., Inc. v. Evian Waters of France, Inc., 87 F.3d 604, 614 (2d Cir. 1996) (under
Connecticut choice-of-law principles, parties’ contractual choice of New York law to
govern their agreement also determined applicable prejudgment interest statute).
Prejudgment interest is “compensation allowed by law as additional damages for
lost use of the money due as damages during the lapse of time between the accrual of
the claim and the date of judgment.” Johnson & Higgins of Texas, Inc. v. Kenneco
Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998) (quoting Cavnar v. Quality Control
Parking, Inc., 696 S.W.2d 549, 552 (Tex. 1985)).
In Texas, statutory prejudgment interest applies only to cases involving wrongful
death, personal injury, property damage, and condemnation. Tex. Fin. Code §§
304.102, 304.201. However, Texas common law allows for prejudgment interest in
breach of contract cases at the same rate as postjudgment interest. Int'l Turbine Servs.,
Inc. v. VASP Brazilian Airlines, 278 F.3d 494, 500 (5th Cir. 2002) (citing Kenneco, 962
S.W.2d at 532). The current Texas postjudgment interest rate is 5% because the
current Federal Reserve prime rate is less than 5%. See Tex. Fin. Code § 304.003.
Prejudgment interest is computed as simple interest, not compounding. Tex. Fin. Code
§ 304.104; Kenneco, 962 S.W.2d at 532.
Because there is no Texas statute authorizing prejudgment interest in a breach
of contract case, the Court has discretion to award prejudgment interest. Citizens Nat'l
Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 487 (Tex. App. 2004) (“Where no statute
controls the award of prejudgment interest, the decision to award prejudgment interest
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is left to the sound discretion of the trial court, which should rely upon equitable
principles and public policy in making this decision.”).
An award of prejudgment interest is appropriate in this case. Odyssey paid its
share of Cal-Regent’s provisional commissions under the Reinsurance Agreements.
Cal-Regent withheld adjustments of those commissions for years claiming a possible
breach by Odyssey. That claim, however, was not supported by the plain language of
the Reinsurance Agreements. Meanwhile, Cal-Regent retained all provisional
commissions paid by Odyssey, including those that came due before the claimed
breach, and those that were not impacted by the carry forward dispute. Under these
circumstances, the Court finds it appropriate to compensate Odyssey for the lost use of
the funds at issue. See Kenneco, 962 S.W.2d at 528.
As to the accrual period, “prejudgment interest accrues on the amount of the
judgment during the period beginning on the earlier of the 180th day after the date the
defendant receives written notice of a claim or the date the suit is filed and ending on
the day preceding the date judgment is rendered.” Tex. Fin. Code § 304.104.
A demand for payment or assertion of a right to be paid constitutes notice of a
claim for purposes of Texas’s prejudgment interest statute. Robinson v. Brice, 894
S.W.2d 525, 528 (Tex. App. 1995) (for purposes of prejudgment interest statute, “claim”
means a “demand for compensation or an assertion of a right to be paid”). Moreover,
“[a] claim need not demand an exact amount or list every element of damage.” Nat'l
Freight, Inc. v. Snyder, 191 S.W.3d 416, 428 (Tex. App. 2006).
The record evidence shows that, on August 6, 2013, an Odyssey representative
e-mailed the intermediary appointed under the Reinsurance Agreements disagreeing
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with Cal-Regent’s position as to the debit carry forward, requesting a revised
calculation, requesting payment of all commission adjustments not affected by the debit
carry forward, and reserving its right to pursue the disputed amount. ECF No. 62-5 at 1.
Thus, on August 6, 2013, Odyssey transmitted a written communication demanding
payment and asserting its right to be paid. That communication constituted written
notice of Odyssey’s claim for purposes of Texas’s prejudgment interest statute. Snyder,
191 S.W.3d at 428. Therefore, prejudgment interest began to accrue 180 days later on
February 2, 2014, and continued to accrue as simple interest at 5% until the day before
this Court enters judgment. See Tex. Fin. Code § 304.104.
2. Attorney’s Fees and Costs
Federal Rule of Civil Procedure 54 provides that “[a] claim for attorney’s fees and
related non-taxable expenses shall be made by motion unless the substantive law
governing the action provides for the recovery of such fees as an element of damages
to be proved at trial.” Fed. R. Civ. P. 54(d)(2)(A).
Texas Civil Practice and Remedies Code § 38.001(8) provides that “a person
may recover reasonable attorney's fees from an individual or corporation, in addition to
the amount of a valid claim and costs, if the claim is for . . . an oral or written contract.”
Tex. Civ. Prac. & Rem. Code § 38.001(8). District courts in Texas have required parties
to file Rule 54 motions to recover attorney’s fees under that provision. See, e.g., ABB,
Inc. v. Pena, No. CIV. A. L-10-83, 2011 WL 906651, at *4 (S.D. Tex. Mar. 15, 2011);
Hoffman v. L & M Arts, No. 3:10-CV-0953-D, 2015 WL 1000838, at *3 (N.D. Tex. Mar.
6, 2015); CSMG Techs., Inc. v. Allison, No. 4:07-CV-0715, 2009 WL 2242351, at *3
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(S.D. Tex. July 24, 2009). This Court will do the same. If Odyssey wishes to pursue
attorney’s fees and/or costs, it must file a timely Rule 54 motion.

Outcome: For the foregoing reasons, Odyssey’s Renewed Motion for Summary Judgment
(ECF No. 102) is GRANTED. There is no genuine dispute as to any material fact, and Odyssey is entitled as a matter of law to a declaratory judgment that Cal-Regen breached the Reinsurance Agreements, and judgment in the amount of $2,740,802.61, with prejudgment interest as provided herein. The Clerk is directed to enter judgment in
Odyssey’s favor on Counts One and Two of the Complaint, and close this case.

Plaintiff's Experts:

Defendant's Experts:

Comments: