AXA Versicherung AG v. New Hampshire Insurance Co., 082310 FED2, 08-2521-cv

Docket Nº:08-2521-cv
Party Name:AXA Versicherung AG, on its own behalf and as successor in interest to Albingia Versicherungs AG, Plaintiff-Counter-Defendant-Appellee, v. New Hampshire Insurance Company, American Home Assurance Company and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendants-Counter-Claimants-Appellants, American International Group, Inc.
Attorney:JOSEPH T. MCCULLOUGH IV (Paul Bradford Ockene, Joseph P. Cyr, Sean Thomas Keely, on the brief) Hogan Lovells U.S. LLP, Chicago, IL and New York, NY, for Plaintiff-Counter-Defendant- Appellee. KATHLEEN M. SULLIVAN (William B. Adams, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY; Stuart E. C...
Judge Panel:PRESENT CHESTER J. STRAUB, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges.
Case Date:August 23, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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AXA Versicherung AG, on its own behalf and as successor in interest to Albingia Versicherungs AG, Plaintiff-Counter-Defendant-Appellee,

v.

New Hampshire Insurance Company, American Home Assurance Company and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendants-Counter-Claimants-Appellants,

American International Group, Inc. and American International Underwriters Overseas, Ltd., Defendants.

No. 08-2521-cv

United States Court of Appeals, Second Circuit

August 23, 2010

UNPUBLISHED OPINION

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 23rd day of August, two thousand and ten.

JOSEPH T. MCCULLOUGH IV (Paul Bradford Ockene, Joseph P. Cyr, Sean Thomas Keely, on the brief) Hogan Lovells U.S. LLP, Chicago, IL and New York, NY, for Plaintiff-Counter-Defendant- Appellee.

KATHLEEN M. SULLIVAN (William B. Adams, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY; Stuart E. Cotton, David W. Kenna, Mound Cotton Wollan & Greengrass, New York, NY, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Defendants- Counter-Claimants-Appellants.

PRESENT CHESTER J. STRAUB, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED to the District Court for entry of judgment in favor of Defendants-Counter-Claimants-Appellants.

Defendants-Appellants New Hampshire Insurance Company, American Home Assurance Company, and National Union Fire Insurance Company of Pittsburgh, Pennsylvania (collectively, "AIG") appeal from a judgment entered in the Southern District of New York (Jed S. Rakoff, Judge) after a jury trial holding AIG liable for $34, 373, 170, including $5, 750, 000 in punitive damages, on claims of fraudulent inducement with respect to two reinsurance facilities, and from the denial of AIG's post-trial motions for relief under Federal Rules of Civil Procedure 50(b) and 59(e). This matter has returned to us after our summary order remand to the District Court on October 6, 2009. See AXA Versicherung AG v. N.H. Ins. Co., 348 F.App'x 628 (2d Cir. 2009). Pursuant to that remand order, we requested that the District Court address in the first instance whether the allegations of Plaintiff-Appellee AXA Versicherung AG ("AXA"), the successor in interest to Albingia Versicherungs AG ("Albingia"), 1 sound in contract as opposed to fraud and whether AIG waived any right it might have to arbitration. Id. at 630-31. The District Court gave full consideration to these issues, and issued its decision on April 29, 2010. See AXA Versicherung AG v. N.H. Ins. Co., ___ F.Supp.2d ___, No. 05 Civ. 10180, 2010 WL 1718202 (S.D.N.Y. Apr. 29, 2010).

We now consider, first, whether the District Court correctly concluded that AXA's allegations sound in fraud, and thus were properly before the District Court rather than being arbitrable, and, second, the remaining issues presented by this appeal, including whether AXA's claims are barred by the statute of limitations. We assume the parties' familiarity with the facts, procedural history, and scope of the issues presented on appeal. For the reasons that follow, we affirm the District Court's conclusion in its April 29 opinion that all of AXA's allegations sound in fraud, and thus were not arbitrable, but we vacate the judgment holding AIG liable for $34, 373, 170 because AXA's fraudulent inducement claims are barred by the statute of limitations. Accordingly, we remand for entry of judgment in favor of AIG.

As a threshold matter, we agree with the District Court that AXA's allegations sound in fraud. See AXA Versicherung, 2010 WL 1718202, at *4-6.2 Specifically, the challenged factual allegations all constitute misrepresentations "of present fact, not of future intent[, ] collateral to, but which w[ere] the inducement for the contract." Deerfield Commc'ns Corp. v. Chesebrough-Ponds, Inc., 502 N.E.2d...

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