                                        COURT OF CHANCERY
                                             OF THE
                                        STATE OF DELAWARE
MORGAN T. ZURN
 MASTER IN CHANCERY                                                       LEONARD L. WILLIAMS JUSTICE CENTER
                                                                         500 NORTH KING STREET, SUITE 11400
                                                                             WILMINGTON, DE 19801-3734



                                 Final Report: November 2, 2016
                                 Draft Report: October 18, 2016
                                   Submitted: August 25, 2016

      Michael K. DeSantis, Esquire
      Law Office of Dawn L. Becker
      Citizens Bank Center
      919 N. Market Street, Suite 550
      Wilmington, DE 19801

      Luciana M. E. Parker, Esquire
      Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP
      Citizens Bank Center
      919 N. Market Street, Suite 200
      Wilmington, DE 19801

                Re:   Government Employees Insurance Company, a foreign corporation,
                      as Subrogee of Noemi Vargas v. Progressive Direct Insurance
                      Company
                      C.A. No. 11425-MZ
                      Respondent’s Motion to Dismiss

      Dear Counsel:

                Petitioner Government Employees Insurance Company (“GEICO”) and

      Respondent Progressive Direct Insurance Company (“Progressive”) each insured a

      party in a four-party accident involving two moving motorcycles and two parked

      cars. GEICO, Progressive, and the other two parties’ insurers participated in five

      arbitrations to allocate responsibility for the damage from the accident. Three
C.A. No. 11425-MZ
November 2, 2016
Page 2

arbitrations were filed and resolved in 2013, and two were filed and resolved in

2015. GEICO petitioned this Court to vacate one of the 2015 arbitration awards

pursuant to 10 Del. C. § 5714(a)(3). Progressive moved to dismiss the petition,

and the parties submitted briefing. In this report, I recommend the Court grant

Progressive’s motion.

       I.       Background1

       On April 21, 2013, a motorcycle insured by State Farm Mutual Automobile

Insurance Company (“State Farm”) and a motorcycle insured by Progressive

collided. That collision caused subsequent impact with two legally parked and

unoccupied vehicles, one insured by GEICO and one insured by Travelers Home &

Marine Insurance Company (“Travelers”). In 2013, the insurers filed three

arbitration demands in Arbitration Forums, Inc. (“AFI”) seeking reimbursement for

property damage from this accident. GEICO filed a demand on May 10, 2013,

seeking recovery in subrogation from Progressive and State Farm (“GEICO’s 2013

Demand”).2 Progressive filed a demand on June 6, 2013, seeking recovery in

subrogation from GEICO, State Farm, and Travelers (“Progressive’s 2013


1
  In considering this motion to dismiss, I have drawn the facts from the well-pled allegations of
the complaint and the arbitration decisions incorporated into the complaint by reference. See
Solomon v. Armstrong, 747 A.2d 1098, 1126 n.72 (Del. Ch. 1999), aff’d, 746 A.2d 277 (Del.
2000); see also Vanderbilt Income & Growth Assocs., L.L.C. v. Arvida/JB Managers, Inc., 691
A.2d 609, 613 (Del. 1996) (noting that the Court may consider documents “integral to a
plaintiff’s claim and incorporated into the complaint” when deciding a motion to dismiss).
2
  Pet. Ex. A.
C.A. No. 11425-MZ
November 2, 2016
Page 3

Demand”).3 Travelers filed a demand on July 8, 2013, seeking recovery in

subrogation from GEICO, Progressive, and State Farm (“Travelers’ 2013

Demand”) (collectively, “2013 Demands”).4

        AFI ruled on the 2013 Demands in September 2013 (“2013 Decisions”). On

each, AFI concluded the applicant “proved 0% liability against” State Farm “based

on: Progressive was inattentive to the movement and position of State Farm in the

lane. Progressive made an unsafe lane maneuver directly in front of the State Farm

vehicle causing contact between the vehicles and subsequent loss of control into

the parked vehicles.”5

        In GEICO’s 2013 Demand and Travelers’ 2013 Demand, AFI upheld

Progressive’s affirmative defense of “Policy Limits – Multiple Exposures,” noting

Progressive had documented the $10,000 limit on the policy at issue, to which

GEICO and Travelers had agreed but to which State Farm had not agreed.6 AFI

noted, “all involved parties must agree. When considering the combined known

and unknown damages, Progressive’s limits are in jeopardy of an excess

situation.”7 Based on that affirmative defense, AFI concluded GEICO and




3
  Pet. Ex. B.
4
  Pet. Ex. C.
5
  Pet. Ex. A at 2; Pet. Ex. B at 2; Pet. Ex. C at 2.
6
  Pet. Ex. A at 1; Pet. Ex. C at 1.
7
  Pet. Ex. A at 1; Pet. Ex. C at 1.
C.A. No. 11425-MZ
November 2, 2016
Page 4

Travelers “proved 0% liability against” Progressive.8 GEICO describes this

conclusion as deferring the entry of a decision against Progressive while the parties

attempted to agree on the distribution of Progressive’s limited policy and therefore

avoid the risk of an excess judgment.9

        GEICO alleges that as of April, 2015, the parties had not agreed on any

distribution of Progressive’s policy, and that on April 15, 2015, Travelers filed

another demand seeking recovery in subrogration from the other three insurers

(“Travelers’ 2015 Demand”).10 On April 17, 2015, GEICO filed another demand

seeking recovery in subrogation from Progressive and State Farm (“GEICO’s 2015

Demand”) (collectively, “2015 Demands”).11

        AFI ruled on the 2015 Demands on August 3, 2015 (“2015 Decisions”).

AFI dismissed both 2015 Demands against State Farm in light of its 2013

Decisions, commenting, “The prior docket found State Farm to be an innocent

party and therefore this portion of the decision is binding.”12 AFI also concluded

neither Travelers nor GEICO proved liability against Progressive “based on: no

duties breached.”13 AFI went on:



8
  Pet. Ex. A at 2; Pet. Ex. C at 2.
9
  Pet. ¶ 9.
10
   Pet. Ex. D.
11
   Pet. Ex. E.
12
   Pet. Ex. D at 1; Pet. Ex. E at 1.
13
   Pet. Ex. D at 2; Pet. Ex. E at 2.
C.A. No. 11425-MZ
November 2, 2016
Page 5

          The evidence demonstrates that State Farm failed to maintain proper
          distance and collided with Progressive’s vehicle. The points of
          impact demonstrate that Progressive had not even left the lane when
          the collision occurred and therefore maintained the right of way ahead
          of State Farm. Liability was not proven against Progressive. It is
          important to note that the prior filing is not binding with regards to
          liability raised against Progressive and that the current hearing is
          limited to this arbitrator’s review of the current evidence.14

          On August 25, 2015, GEICO petitioned to vacate the arbitration award on

GEICO’s 2015 Demand. Progressive moved to dismiss the petition on November

6, 2015. GEICO responded on August 25, 2016. Progressive did not file a reply.

          II.     Decision

          GEICO’s petition asks this Court to vacate the arbitration award on

GEICO’s 2015 Demand pursuant to 10 Del. C. § 5714(a)(3), on the grounds that

the arbitrator executed its powers so imperfectly as to preclude a final and definite

award. GEICO asserts the arbitrator’s 2015 conclusion that Progressive was not

liable directly contradicted the 2013 Decisions’ finding that Progressive’s insured

caused the accident, and that the arbitrator erred by finding the 2013 Decisions

were binding on GEICO’s 2015 Demand only as to State Farm’s innocence and not

as to Progressive’s liability.

          Progressive moved to dismiss on two grounds. First, Progressive claims this

Court lacks jurisdiction over GEICO’s petition because the petition is an


14
     Pet. Ex. D at 2; Pet. Ex. E at 2.
C.A. No. 11425-MZ
November 2, 2016
Page 6

impermissible appeal from an arbitration decision. In the alternative, Progressive

claims the arbitrator’s inconsistent application of the 2013 Decisions was within

the arbitrator’s authority under 21 Del. C.§ 2118(g)(3). GEICO responds that its

petition is properly within this Court’s narrow jurisdiction to review arbitration

awards under Section 5714, and that the arbitrator’s application of the 2013

Decisions as binding on State Farm but not Progressive was so imperfect that the

2015 Decision must be vacated.

       Under Court of Chancery Rule 12(b)(6), if the Court determines with

“reasonable certainty that the plaintiff could not prevail on any set of facts that can

be inferred from the pleading,” the plaintiff’s case must be dismissed.15 In

considering a motion to dismiss for failure to state a claim, “[a]ll facts of the

pleadings and inferences that can reasonably be drawn therefrom are accepted as

true. However, neither inferences nor conclusions of fact unsupported by

allegations of specific fact are accepted as true.”16

       This Court has jurisdiction over GEICO’s petition under 10 Del. C. § 5714,

which provides for a narrow review distinct from an appeal. Progressive is correct

that this Court does not have jurisdiction over an appeal from these arbitrations.

Neither the arbitration statute, 21 Del. C. § 2118(g)(3), nor the review statute, 10

15
   Daisy Constr. Co. v. Mumford & Miller Concrete, Inc., 2005 WL 1653943, at *2 (Del. Ch.
June 30, 2005).
16
   Id.
C.A. No. 11425-MZ
November 2, 2016
Page 7

Del. C. § 5714, provides any right of appeal.17 Progressive’s proffered authority, a

bulletin from the Delaware Insurance Commissioner, reminds insurers that

arbitration awards under Section 2118 “are final, non-appealable awards.”18

        But Delaware courts have repeatedly distinguished between an

impermissible de novo appellate review of an arbitration decision and a permissible

narrow review under Section 5714. “It is beyond dispute that the Court of

Chancery has a very circumscribed role in matters arising out of arbitration

proceedings. Once an arbitration award has been made it may be vacated or

modified only for the reasons set forth in 10 Del. C. §§ 5714 or 5715.”19 This

Court’s review of an arbitration award “is one of the narrowest standards of

judicial review in all of American jurisprudence.”20

        Simply put, [the Court] can vacate an award issued by arbitrators who
        abused their authority or who acted without authority, but [the Court]
        ha[s] no power to review the merits of the arbitrators’ substantive
        decision.21

I conclude GEICO’s petition is reviewable through the specific lens of Section

5714.



17
   New Hampshire Ins. Co. v. State Farm Ins. Co., 1994 WL 125038, at *3 (Del. Ch. Mar. 31,
1994).
18
   Mandatory Arbitration Required Under 21 Del. C. § 2118, Domestic/Foreign Insurers Bulletin
77 (Del. Dep’t of Ins. Sept. 1, 2015), 2015 WL 5123742.
19
   New Hampshire Ins. Co., 1994 WL 125038 at *2 (internal citations omitted).
20
   SPX Corp. v. Garda USA, Inc., 94 A.3d 745, 750 (Del. 2014).
21
   Ruggerio v. State Farm Mut. Auto. Ins. Co., 1999 WL 499459, at *4 (Del. Ch. June 23, 1999).
C.A. No. 11425-MZ
November 2, 2016
Page 8

       The next question is therefore whether GEICO’s claim, that the arbitrator

imperfectly executed its powers such that vacatur is warranted, should be

dismissed.

       Vacatur pursuant to [10 Del. C. § 5714(a)(3)] requires evidence that
       the arbitrator acted in manifest disregard of the law. The evidence
       must establish that the arbitrator (1) knew of the relevant legal
       principle, (2) appreciated that this principle controlled the outcome of
       the disputed issue, and (3) nonetheless willfully flouted the governing
       law by refusing to apply it. In other words, the Court must find an
       error that is so obvious that it would be instantly perceived as such by
       the average person qualified to serve as an arbitrator. It is
       inappropriate to vacate an arbitration award if the arbitrator’s decision
       rationally can be derived from the parties’ submissions.22

“[T]here is a presumption that the arbitration panel acted within the scope of its

authority, and this presumption may not be rebutted by an ambiguity in a written

opinion.”23 “[I]f any grounds for the award can be inferred from the record, the

Court must presume that the arbitrator did not exceed his authority and the award

must be upheld.”24




22
   Roncone v. Phoenix Payment Sys., Inc., 2014 WL 6735210, at *4 (Del. Ch. Nov. 26, 2014)
(internal citations and quotations omitted).
23
   TD Ameritrade, Inc. v. McLaughlin, Piven, Vogel Sec., Inc., 953 A.2d 726, 732 (Del. Ch.
2008) (internal quotation omitted); see also id. at 736 (“A mere ambiguity in the opinion
accompanying an award, which permits the inference that the arbitrator may have exceeded his
authority, is not a reason for refusing to enforce the award.”) (quoting United Steelworkers of
Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960)).
24
   Id. at 732.
C.A. No. 11425-MZ
November 2, 2016
Page 9

      GEICO’s petition asserts the decision on GEICO’s 2015 Demand should be

vacated because the arbitrator adopted the 2013 Decisions inconsistently.25

Progressive contends the arbitrator made a procedurally sound, evidence-based

determination on the merits with awareness of the 2013 Decisions, acting within

the arbitrator’s authority. Progressive’s motion asserts vacatur is not appropriate

because the arbitrator’s action was less egregious than that in Ruggerio v. State

Farm Mutual Automobile Insurance Co., which vacated an arbitrator’s decision

because the arbitrator considered an unauthorized post-hearing motion. 26 GEICO

responds that Ruggiero’s holding, vacating an arbitration for procedural problems,

is inapplicable to the 2015 decision’s “inherent imperfections” on the merits.27

      Neither GEICO nor Progressive provided any authority on the extent to

which an arbitrator is bound by a prior arbitration between the same parties on the

same facts, nor the extent to which a reviewing court may rule on that issue.

Ruggiero does not pertain to that issue. I take some instruction from Roncone v.

Phoenix Payment Systems, Inc., in which this Court declined to vacate an

arbitrator’s decision where the arbitrator applied part of a company’s salary plan

dealing with commissions to an employee, but not another part of the same plan




25
   Pet. ¶ 14.
26
   1999 WL 499459 at *6.
27
   Resp. ¶ 7.
C.A. No. 11425-MZ
November 2, 2016
Page 10

dealing with salary.28 This Court concluded, “The arbitrator did not exceed his

powers or execute them imperfectly in reaching his conclusion. In short, this is the

type of factual determination where the reviewing court’s authority is limited.”29

       Authority outside of Delaware persuades me that judicial review of the

decision on GEICO’s 2015 Demand should not encompass whether that arbitration

was bound by a prior arbitration. In W.R. Grace and Company v. Local Union

759, an arbitrator determined the underlying collective bargaining agreement did

not compel him to follow a preceding award resolving the same issue as to a

different party.30 The United States Supreme Court evaluated whether the second

award should be enforced.31 The Court concluded that because the arbitrator’s

authority was a subject of collective bargaining, so was the scope of that authority,

and the Court could not second-guess the arbitrator’s interpretation of the

collective bargaining agreement.32 In other words, the decision to be bound by the

first award was left to the arbitrator of the second award, beyond the Court’s

review.

       The Third Circuit has held that arbitrators, not a reviewing court, should

determine whether a prior arbitration had a res judicata effect on a second


28
   2014 WL 6735210 at *3, *5.
29
   Id. at *5.
30
   461 U.S. 757, 762-63 (1983).
31
   Id at 764.
32
   Id. at 764-65.
C.A. No. 11425-MZ
November 2, 2016
Page 11

arbitration.33 In John Hancock Mutual Life Insurance Co. v. Olick, a former

employee sued his former employer in federal court, which claim was dismissed,

and filed an arbitration claim against his former employer, which resulted in an

award in favor of the employee.34 The former employee then filed a second

arbitration claim, which inspired the employer to seek a judicial declaration that

the claims raised in the second arbitration were barred on res judicata grounds, as

well as a preliminary injunction halting the second arbitration.35 The District Court

held the arbitrator, not the court, decides preclusion issues stemming from prior

arbitrations.36 The Third Circuit noted the narrow standard of review for

arbitrations, and reasoned that because the parties’ arbitration agreement and

procedures thereunder governed the finality of arbitration awards, the res judicata

objection based on the prior arbitration was an issue to be arbitrated, not to be

decided by the courts.37

       Similarly, in Chiron Corp. v. Ortho Diagnostic Systems, Inc., the Ninth

Circuit found that the arbitrator, not a court, was responsible for determining the




33
   John Hancock Mut. Life Ins. Co. v. Olick, 151 F.3d 132, 139-40 (3d Cir. 1998). Section 5714
tracks an analogous provision in the Federal Arbitration Act (FAA), and Delaware courts have
found that federal cases interpreting the FAA are “most helpful.” SPX Corp., 94 A.3d at 750.
34
   Id. at 134.
35
   Id.
36
   Id.
37
   Id. at 139-40.
C.A. No. 11425-MZ
November 2, 2016
Page 12

preclusive effect of an earlier arbitration award.38 In that case, Chiron and Ortho

entered into an agreement to manufacture and market medical testing, which

included that they would arbitrate disputes arising out of that agreement. 39 The

parties disagreed as to whether Ortho could customize tests for use only on Ortho’s

machine, precluding use of the tests on Chiron’s machine.40 An arbitrator

concluded the agreement permitted Ortho’s action and that this award was “final

and binding upon the parties.”41 Following that decision, Chiron submitted a

proposal to permit use of Chiron’s machine, which Ortho rejected. Chiron sought

a second arbitration, which Ortho refused on the basis that the first arbitration

precluded further arbitration on that same issue. The District Court denied

Chiron’s request for an order compelling arbitration, concluding Ortho’s res

judicata defense was itself an arbitrable issue.42 The Ninth Circuit agreed, noting

the underlying agreement required arbitration of “any” dispute, without singling

out a dispute over res judicata.43 Accordingly, the Ninth Circuit concluded that the

applicability of a res judicata defense in a second arbitrable dispute was a




38
   207 F.3d 1126, 1132-34 (9th Cir. 2000).
39
   Id. at 1128.
40
   Id. at 1129.
41
   Id.
42
   Id.
43
   Id. at 1132-34 (citing Nat’l Union Fire Ins. Co. v. Belco Petroleum Corp., 88 F.3d 129 (2d Cir.
1996)).
C.A. No. 11425-MZ
November 2, 2016
Page 13

component of the merits of the dispute and was thus an arbitrable issue, not to be

determined by a court.44

       The arbitration framework here is statutory, not contractual. I do not see that

21 Del. C. § 2118, the regulations thereunder,45 or the 2013 or 2015 Decisions

address the preclusive effect of Section 2118 arbitrations on subsequent

arbitrations. This silence further indicates that this Court is not in a position to

determine that preclusive effect. The Court lacks both reviewing authority and

instruction. Pursuant to W.R. Grace as contextualized by John Hancock, Chiron,

and Roncone, I conclude that whether the 2013 Decisions were wholly binding on

the 2015 Decisions is an issue the arbitrator should decide. I conclude this Court’s

narrow review of arbitrations should not reach whether the arbitrator was bound by

the previous arbitration.

       If I were to reach whether the arbitrator’s application of the 2013 Decisions

warranted vacatur, I would not disturb the 2015 award. The 2015 Decisions

referenced the 2013 Decisions explicitly in adopting them in part and deviating

from them in part. Presumably, GEICO attempted to convince the 2015 arbitrator

that the 2013 Decisions were binding in toto. The 2015 arbitrator determined the

extent to which the 2013 Decisions were binding. The 2013 and 2015 Decisions

44
   Id. at 1134.
45
   Del. Dep’t of Ins. Reg. 901 (Mar. 11, 2002). Subrogation arbitration such as that at issue here
is exempt from this Regulation. Id. § 11.
C.A. No. 11425-MZ
November 2, 2016
Page 14

permit the inference that the 2013 Decisions were not binding as to Progressive

because, as GEICO explained in its petition, the 2013 decision as to Progressive’s

liability was deferred pending all the parties’ agreement on the distribution of

Progressive’s limited policy.46 Any ambiguity in the arbitrator’s partial adoption of

the 2013 Decisions is insufficient to overcome the presumption that the arbitrator

acted within its authority.47

          Therefore, I agree with Progressive that GEICO’s petition fails to state a

claim that the arbitrator exceeded its authority under 21 Del. C. § 2118(g)(3) as

reviewed under Section 5417. I recommend this Court grant Progressive’s motion

to dismiss.

          III.   Conclusion

          For the foregoing reasons, I recommend this Court grant Progressive’s

motion. The parties are directed to Chancery Rule 144 for the process for taking

exception to this report.

                                           Sincerely,

                                           /s/ Morgan T. Zurn
                                           Master in Chancery




46
     See Pet. ¶ 9.
47
     See TD Ameritrade, 953 A.2d at 732.
