United States District Court,

S.D. New York.

STOLT TANKERS BV, Petitioner,

v.

ALLIANZ SEGUROS, S.A. and ACE SeguradorA S.A., Respondents.

 

No. 11 Civ. 2331(SAS).

June 16, 2011.

 

Manuel A. Molina, Esq., Freehill Hogan & Mahar LLP, New York, NY, for Petitioner.

 

Lawrence Caruso Glynn, Esq., Caruso Glynn, LLC, Fresh Meadow, NY, for Respondents.

 

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION

Stolt Tankers BV (“Stolt”) petitions to compel Allianz Seguros S.A. (“Allianz”) and Ace Seguradora S.A. (“Ace”) (collectively, “Respondents”) to proceed with arbitration and to enjoin Respondents from proceeding with a lawsuit in the courts of Brazil. For the reasons discussed below, the petition to compel arbitration and enjoin Respondents from proceeding with their suit is granted.

 

II. BACKGROUND

On January 19, 2009, Stolt, as “Owner” of the M/V STOLT EXCELLENCE, and Tricon Shipping Inc. (“Tricon”), as “Charterer,” entered into a voyage “Charter Party” on an amended “ASBATANKVOY Charter Party form” (“Asbatankvoy Form”). Specifically, through the Charter’s “Fixture Recap,”  Stolt and Tricon agreed to the following provisions: (a) application of “U.S. Law;” (b) “Arbitration in New York;” (c) use of the “C/P [charter party] Asbatankvoy” form as the basis for their contractual arrangements; and (d) the inclusion of the “Tricon Shipping Inc. Shipping Clauses” as part and parcel of the Charter.

 

Tricon Shipping Clauses, Ex. B to Petition to Compel Arbitration Pursuant to 9 U.S.C. §§ 1–307 and for an Anti–Suit Injunction (“Petition”).

 

Broker’s Fixture Confirmation Email (“Fixture Recap”), Ex. A to Petition. A “fixture recap” is the communication, usually between the parties’ brokers, that contains or “fixes” the parties’ agreement to “main terms” which usually include “the name of the charterer, name of owner, ship and its characteristics, time and place of delivery, duration of charter, place of redelivery, hire rate, printed form upon which the contract is based, and any other term that a party deems important.” Great Circle Lines Ltd. v. Matheson & Co., 681 F.2d 121, 125 (2d Cir.1992) (emphasis added). “A ‘recap’ communication, or ‘fixture,’ is recognized throughout the shipping industry as an agreement to a charter party’s essential terms.” U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 148 (2d Cir.2001).

 

See Fixture Recap.

 

Part II, Clause 24 of the Asbatankvoy Form, in turn, provides as follows:

 

24. ARBITRATION. Any and all differences and disputes of whatsoever nature arising out of this Charter shall be put to arbitration in the City of New York or in the City of London whichever place is specified in Part I of this charter ….

 

ASBATANKVOY Charter Party Form (“Asbatankvoy Form”), Ex. C to Petition, at 57 (emphasis added). Section K of Part I of the Asbatankvoy Form in turn sets “[t]he place of General Average and arbitration proceedings to be London/New York (strike one out).” Id. at 52.

 

On February 11, 2009, Tricon loaded onboard the M/V STOLT EXCELLENCE several quantities of “caustic soda.” Stolt then issued “Tanker bills of lading” Nos. 482A, 482B, and 482C, expressly identifying Klabin S.A. (“Klabin”) as “Consignee” to bill Nos. 482A and 482B, and identifying Suzano Papel e Celolose S.A. (“Suzano”) as “Consignee” to bill No. 482C. Each of the Stolt bills of lading contains the following clause:

 

Bills of Lading, Ex. D to Petition.

 

This shipment is carried under and pursuant to the terms of the Charter 01 19 2009 at Houston, Texas between STOLT TANKERS, BV and TRICON SHIPPING as Charterer, and all the terms whatsoever of the said Charter, including the arbitration clause, except the rate and payment of freight specified therein, apply to and govern the rights of the parties concerned in this shipment.

 

Id. (emphasis added).

 

Upon arrival of the M/T STOLT EXCELLENCE at Santos, Brazil, Klabin and Suzano alleged that a portion of the caustic soda had been damaged. Eventually, Zass Internacional Consultoria Ltda. (“Zass”) advised Stolt that it represented Ace and Allianz, the purported subrogated underwriters of Suzano and Klabin, repectively, and that it had been authorized by Ace and Allianz to seek recovery against Stolt in subrogation for the cargo claims allegedly paid to their insureds. Stolt engaged Brazilian counsel to deal directly with Zass, but ultimately the parties’ efforts to resolve Respondents’ claims proved unsuccessful, and Zass threatened to and did commence lawsuits in Brazil against Stolt. In response, Stolt retained counsel to demand that Respondents arbitrate in New York. Respondents have refused to nominate their arbitrator pursuant to the terms of the Charter and Stolt bills of lading. Stolt now moves to compel arbitration and to enjoin Respondents from continuing proceedings in Brazil.

 

Klabin and Suzano were originally named as Respondents in this petition, but have since been dismissed. See 5/5/11 Order of Dismissal Only as to Respondent Klabin S.A. [Docket No. 14]; 5/6/11 Order of Dismissal Only as to Respondent Suzano Papel e Celulose S.A. [Docket No. 16].

 

III. APPLICABLE LAW

 

A. In Personam Jurisdiction

 

A party who agrees to arbitrate in New York “must be deemed to have consented to the jurisdiction of the court that could compel the arbitration proceeding in New York. To hold otherwise would be to render the arbitration clause a nullity.”  The Second Circuit has repeatedly upheld the rule that arbitration forum clauses confer personal jurisdiction by consent.  It is, therefore, “well-settled that federal courts applying New York law have personal jurisdiction over parties that agree to arbitrate their disputes in New York.” 0

 

Victory Transp. Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F.2d 354, 363 (2d Cir.1964).

 

See, e.g., Merrill Lynch, Pierce, Fenner & Smith v. Lecopolus, 553 F.2d 842, 845 (2d Cir.1977).

 

0. American Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349, 352 (2d Cir.1999).

 

Because an insurer’s “right of recovery … is governed by the same terms as the insured’s right of recovery,” 1 an insurer-subrogee “is equally bound by a consent to jurisdiction.” 2 Therefore, as long as the arbitration clause “is enforceable, this court has personal jurisdiction over [Respondents] ….“ 3

 

1. Farrell Lines Inc. v. Columbus Cello–Poly Corp., 32 F.Supp.2d 118, 127 (S.D.N.Y.1997).

 

2. Novorossiyk Shipping Co. v. China Pacific Prop. Ins. Co., No. 06 Civ. 2312, 2006 WL 3055964, at(S.D.N.Y. Nov. 16, 2006). Accord American Bureau of Shipping, 170 F.3d at 352; Farrell Lines, 32 F.Supp.2d at 126–27.

 

3. Farrell Lines, 32 F.Supp.2d at 127.

 

B. Service of Process

Where a party has agreed to arbitrate and thus has consented to the jurisdiction of the courts where arbitration is to take place, “the sole function of process” is to notify the other party of the proceedings.4 In accordance with Rule 4(h)(2) of the Federal Rules of Civil Procedure, the service of process on a foreign corporation abroad must be done in accordance with Rule 4(f). Rule 4(f)(3) states that the corporation can be served “by other means not prohibited by international agreement, as the court orders.” 5

 

4. Victory Transp., 336 F.2d at 363.

 

5. Fed.R.Civ.P. 4(f)(3).

 

C. Arbitrability

 

1. Incorporation of Arbitration Clauses

 

Although federal policy favors arbitration, it is a matter of consent under the Federal Arbitration Act, and “a party cannot be required to submit to arbitration any dispute which [it] has not agreed so to submit.” 6 Arbitration clauses in charter parties have been invariably interpreted as being “broad” in scope and not restricted or limited to disputes solely between “owners” and “charterers.” 7 The Second Circuit

 

6. Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading, Inc. ., 252 F.3d 218, 224 (2d Cir.2001) (quotation marks omitted).

 

7. See Ibeto Petrochemicals Indus. Ltd. v. M/T BEFFEN, 475 F.3d 56, 63 (2d Cir.2007); JLM Indus., Inc. v. Stolt–Nielsen SA, 387 F.3d 163 (2d Cir.2004).

 

long ha[s] held that a broadly-worded arbitration clause which is not restricted to the immediate parties may be effectively incorporated by reference into another agreement. According to this rule, a charter party provision for such arbitration is binding on the parties to a Bill of Lading that incorporates the Charter Party by reference.8

 

8. Ibeto, 475 F.3d at 63 (citations and quotation marks omitted).

 

“Where terms of the charter party are … expressly incorporated into the bills of lading they are a part of the contract of carriage and are binding … just as they would be if the dispute were between the [original parties to the charter agreement].” 9 To incorporate a charter party clause effectively, “the bill of lading must specifically refer to a charter party and use unmistakable language indicating that it is incorporated.” 0

 

9. Son Shipping Co. v. De Fosse & Tanghe, 199 F.2d 687, 688 (2d Cir.1952).

 

0. Continental Ins. Co. v. Polish S.S. Co., 346 F.3d 281, 283 (2d Cir.2003).

 

2. Application to Subrogated Insurers

When a maritime insurer has paid a claim to the insured, who in turn has a claim of right under a contract, the insurer “becomes, in effect, the beneficial owner of those rights, entitled … to assert the right against the third party.” 1 The general rule declares that “[a]n insurer-subrogee stands in the shoes of its insured” 2 and “succeeds to whatever rights or disabilities he may have in the matter.” 3 Thus there is “no valid basis in law or equity why an arbitration clause should not be enforced against a subrogee.” 4 A petition to compel arbitration against the insured is “equally valid against the insurer …. 5 As such, “once the insurer becomes subrogated, it steps into the insured’s shoes and essentially becomes a party to the bill of lading. Its right of recovery from the carrier of the goods is governed by the same terms as the insured’s right of recovery, i.e. by the bill of lading.” 6

 

1. Gilmore and Black, The Law of Admiralty § 2–17 at 91 (2d ed.1975).

 

2. Gibbs v. Hawaiian Eugenia Corp., 966 F.2d 101, 103 (2d Cir.1992).

 

3. Lumbermans Mut. Cas. Co. v. Borden Co., 268 F.Supp. 303, 314 (S.D.N.Y.1967).

 

4. Id.

 

5. American Bureau of Shipping, 170 F.3d at 352.

 

6. Farrell Lines, 32 F.Supp.2d at 127.

 

D. Anti–Suit Injunction

“It is beyond question that a federal court may enjoin a party before it from pursuing litigation in a foreign forum.” 7 However, “principles of comity counsel that injunctions restraining foreign litigation be used sparingly and granted only with care and great restraint. That is because an anti-suit injunction, though directed at the litigants, effectively restricts the jurisdiction of the court of a foreign sovereign.8

 

7. Paramedics Electromedicina Comercial, Ltda. v. G.E. Med. Sys. Info. Techs., Inc., 369 F.3d 645, 652 (2d Cir.2004).

 

8. LAIF X SPRL v. Axtel, S.A. de C.V., 390 F.3d 194, 199 (2d Cir.2004) (citations and quotation marks omitted).

 

When determining whether to enjoin a foreign action, a court should consider the relationship between the suit at bar and the suit in the foreign jurisdiction. “An anti-suit injunction against parallel litigation may be imposed only if: (A) the parties are the same in both matters, and (B) resolution of the case before the enjoining court is dispositive of the action to be enjoined.” 9 If this threshold has been met, the court should also consider the following factors (“China Trade factors”):

 

9. Paramedics, 369 F.3d at 652 (citing China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 35 (2d Cir.1987)).

 

(1) frustration of a policy in the enjoining forum; (2) the foreign action would be vexatious; (3) a threat to the issuing court’s in rem or quasi in rem jurisdiction; (4) the proceedings in the other forum prejudice other equitable considerations; or (5) adjudication of the same issues in separate actions would result in delay, inconvenience, expense, inconsistency, or a race to judgment.0

 

0. China Trade, 837 F.2d at 35.

 

E. Sanctions

Under Rule 11(c) of the Federal Rules of Civil Procedure a court can, upon motion or on the court’s own initiative, and after notice and a reasonable opportunity to respond, impose monetary sanctions “on any attorney, law firm, or party that violated [Rule 11(b) ] or is responsible for its violation.” 1 Rule 11(b) states that by “presenting to the court a pleading, written motion, or other paper” the attorney certifies that to the best of the person’s belief “the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law.” 2

 

1. Fed.R.Civ.P. 11(c).

 

2. Fed.R.Civ.P. 11(b)-(b)(2).

 

A party must bring a motion for sanctions “separately from other motions or requests.” 3 Alternatively, “[o]n its own initiative, the court may enter an order … directing an attorney … to show cause why [the attorney] has not violated subdivision (b).” 4

 

3. Fed.R.Civ.P. 11(c)(1)(A).

 

4. Fed.R.Civ.P. 11(c)(1)(B).

 

IV. DISCUSSION

 

A. In Personam Jurisdiction

 

Respondents’ contention that an agreement to arbitrate in New York by the insured does not confer jurisdiction over the insurer is without merit. As discussed below, the arbitration clause in the Fixture Recap specifies New York as the forum for arbitration of any disputes arising out of the Charter Party. Because Klabin and Suzano are parties to the bills of lading, into which the New York arbitration clause was incorporated by reference to the Charter Party using unmistakable language, they are bound by the arbitration clause. Because Klabin and Suzano have thus effectively agreed to arbitrate any disputes arising out of the transaction in New York, they have consented to the jurisdiction of this Court.5

 

5. See Victory Transp., 336 F.2d at 363.

 

Allianz and Ace are responding to this petition and litigating in Brazil against Stolt only in their roles as subrogees of Klabin and Suzano. As such, their rights and obligations are no different from those of Klabin and Suzano. 6 And because Klabin and Suzano, as subrogors, are parties to the bills of lading and to the arbitration clause, that clause also binds Allianz and Ace as subrogees.7 Because Allianz and Ace are bound by the New York arbitration clause, this Court, which has the power to compel arbitration in accordance with the clause, may exercise jurisdiction over them.8 If any party to an arbitration could escape liability by avoiding jurisdiction through simply subrogating its rights to a third party, it would render any arbitration clause meaningless, which surely would not comport with the intention of the parties.9 The insurers cannot escape their obligations under one clause of the contract—the arbitration clause—while suing under a different one. Given these considerations, and given that Respondents stand “in the shoes of the insured,” this Court clearly has personal jurisdictions over Respondents.

 

6. See Gibbs, 966 F.2d at 103.

 

7. See American Bureau of Shipping, 170 F.3d at 352.

 

8. See id.; Novorossiysk, 2006 WL 3055964, at *1.

 

9. See Farrell Lines, 32 F.Supp.2d at 126.

 

B. Service of Process

As noted, the sole function of service of process is to give notice to Respondents that proceedings have commenced.0 Respondents clearly were put on notice, and indeed have defended against the Petition on the merits. Moreover, service of process was made pursuant to an order of this Court 1 in accordance with Rule 4(f)(3). The cases cited in support of Respondents’ position that service by electronic mail is insufficient did not involve arbitration proceedings, and are therefore not probative. Although service of process on Respondents would be insufficient to establish personal jurisdiction, it was clearly sufficient to put Respondents on notice. Service of process was therefore proper.

 

0. See Victory Transp., 336 F.2d at 363.

 

1. See 4/11/11 Order to Show Cause [Docket No. 4].

 

C. Petition to Compel Arbitration

The parties here clearly intended for any disputes arising out of the agreement to be arbitrated in New York. Part II, Clause 24 of the Asbatankvoy Form provides that

 

any and all differences and disputes of whatsoever nature arising out of this Charter shall be put to arbitration in the City of New York or in the City of London, whichever place is specified in Part I of this charter …. 2

 

2. Asbatankvoy Form at 57.

 

Part I, Clause K provides “[t]he place of General Average and arbitration proceedings to be London/New York (strike out one.)” 3 Although neither place is struck out in Part I, the phrase “General Average/Arbitration New York” in the Fixture Recap clearly indicates New York as the parties’ choice of forum. Respondents’ argument that this phrase refers only to arbitration of disputes concerning General Average has no merit. The plain reading of the entire contract and this Court’s prior jurisprudence dictate that the inclusion of “General Average/Arbitration New York” in the Fixture Recap indicate the parties’ unambiguous intent to arbitrate any disputes in New York.4

 

3. Id. at 52 (emphasis added).

 

4. See BS Sun Shipping Monrovia v. Citgo Petroleum Corp., 509 F. Supp 2d 334, 338 (S.D.N.Y.2007).

 

Even without this phrase in the Fixture Recap, however, Clause 37 of the Tricon Shipping Clauses stipulates that “[i]f no selection is made, New York shall be deemed to have been selected under Part I, Clause K.” 5 Thus the interpretation of the Fixture Recap is without consequence. Whether the parties made a deliberate choice—which they did through the Fixture Recap—or whether they made no choice at all, the parties are deemed to have selected New York as the place to arbitrate any disputes arising out of the agreement.

 

5. Tricon Shipping Clauses at 13.

 

The arbitration clause also applies to Respondents. The arbitration clause is broad in scope.6 It does not specify that only some parties are bound by it, and is not restricted to any specific issues. The bills of lading, using “unmistakable language,” 7 expressly incorporate “all the terms whatsoever of the said [Asbatankvoy] Charter, including the arbitration clause.” 8 Because the arbitration clause in the Asbatankvoy Form was specifically incorporated by reference into each bill of lading, it applies to the consignees specified on those bills of lading—Klabin and Suzano. As the subrogated insurers of Klabin and Suzano, the Respondents are equally bound to arbitrate. The Respondents “stand[ ] in the shoes of the insured,” 9 and cannot escape the arbitration clause any more than the insured.0 Stolt’s motion to compel the Respondents to arbitrate is therefore granted.

 

6. See Ibeto, 475 F.3d at 63; JLM, 387 F.3d at 172.

 

7. Continental Ins., 346 F.3d at 283.

 

8. Fixture Recap.

 

9. Gibbs, 966 F.2d at 103.

 

0. See American Bureau of Shipping, 170 F.3d at 352.

 

D. Petition for an Anti–Suit Injunction

Petitioner also moves to enjoin Respondents’ litigation in Brazil. While this Court has the power to issue an anti-suit injunction, as noted earlier it should only do so if “(A) the parties are the same in both matters, and (B) resolution of the case before the enjoining court is dispositive of the action to be enjoined.” 1

 

1. Paramedics, 369 F.3d at 652.

 

Respondents maintain that the parties in the Brazilian action are different from those in the action before this Court, because in the Brazilian action Stolt Brazil, Stolt’s Brazilian affiliate, is named as a defendant.2 But because Stolt Brazil was named as a defendant in the Brazilian action on the basis of its corporate relationship with Stolt, the China Trade “same party” requirement is satisfied.3

 

2. See Respondents’ Memorandum of Law in Opposition to Petition to Compel Arbitration Pursuant to 9 U.S.C. §§ 1–307 and for an Anti–Suit Injunction at 4–6.

 

3. See Paramedics, 369 F.3d at 652.

 

With regard to the second threshold factor, although this Court will not determine the outcome of the underlying dispute, an order by this Court compelling arbitration will result in a determination of the dispute in the arbitration. The resolution of the case before this Court is therefore clearly dispositive of the Brazilian litigation.4

 

4. See Ibeto, 475 F.3d at 64; Paramedics, 369 F.3d at 653.

 

These threshold considerations having been met, this Court must address the five China Trade factors. Several of these factors counsel in favor of enjoining the Brazilian action. First, permitting the Brazilian litigation to continue will frustrate the general federal policy of promoting arbitration. Second, the fact that the Brazilian court will not apply the principles of the Carriage of Goods by Sea Act (“COGSA”) 5 may result in widely disparate results in these two actions. Indeed, the prospect of a more favorable outcome under Brazilian law seems to be the motivation behind Respondents’ effort to litigate in Brazil. This potential disparity, and the race to judgment that it could provoke, weigh in favor of an anti-suit injunction. Third, the equitable considerations involved, such as deterring forum shopping, also compel enjoining the foreign action. Fourth, it is likely that adjudication of the same issues in two separate actions would result in inconvenience, inconsistency, and a possible race to judgement. As discussed above, given that COGSA will be applicable in the New York arbitration but not in the Brazilian action, the outcomes could be inconsistent. Moreover, because the witnesses and evidence in both actions would likely be the same, there could be considerable inconvenience in shuttling witnesses between the venues for these two actions. Furthermore, one of the purposes of including a binding arbitration clause in a contract is to avoid extensive and expensive litigation. Forcing Stolt to pursue parallel litigation in Brazil while arbitrating the same issues in New York would likely impose unreasonable and unnecessary costs. Fifth, as both courts have in personam jurisdiction over the parties, there is no particular threat to this Court’s jurisdiction. However, given that the four other China Trade factors weigh in favor of an injunction, Stolt’s petition to enjoin the Respondents’ action in Brazil is granted.

 

5. 46 U.S.C. § 30701. See 4/1/11 Declaration of Iwam Jaeger, Jr., Stolt’s Brazilian Counsel, in Support of Petition to Compel Arbitration Pursuant to 9 U.S.C. §§ 1–307 and for an Anti–Suit Injunction ¶¶ 8–10.

 

E. Sanctions

Stolt requested in its petition that this Court award Stolt “costs and attorneys’ fees for this Petition …,” 6 Although Stolt does not make explicit under what rule of law it requests relief,7 the only authority cited in support of Stolt’s request, Bartels Dental Books Co. v. Schultz, concerns Rule 11 sanctions.8 Stolt has not, however, made a motion for sanctions “separately from other motions and requests” in accordance with Rule 11(c)(1)(B).9 Although this Court has the power to issue a show cause order on its own initiative, because “show cause orders will ordinarily be issued only in situations that are akin to contempt of court …” 0, such an order is not appropriate here. Stolt is, of course, free to bring a separate motion for sanctions, but because it has not done so, I do not reach the merits of whether the conduct of Respondents or their attorney merits sanctions. Stolt’s request for imposition of costs and attorneys’ fees is therefore denied.

 

6. Petition at 11.

 

7. See 5/4/11 Stolt’s Reply to Respondents’ Letter–Brief at 9.

 

8. 786 F.2d 486, 491 (2d Cir.1986).

 

9. Fed.R.Civ.P. 11(c)(1)(B).

 

0. Fed. R. Civ. P. 11, 1993 AdvisoryCommittee Note.

 

V. CONCLUSION

For the reasons set forth above, the petition to compel arbitration, and to enjoin Respondents’ Brazilian action until the conclusion of arbitration, is granted. Petitioner’s request for impositon of costs and fees is denied. The Clerk of the Court is directed to close this case.

 

SO ORDERED:

 

Supreme Court of Nebraska.

Sylvia DEVESE, Personal Representative of the Estate of Stephen O’Bryant, deceased, appellant,

v.

TRANSGUARD INSURANCE COMPANY OF AMERICA, INC., a foreign corporation, appellee.

 

No. S–10–250.

June 17, 2011.

 

Walter E. Zink II and Jarrod P. Crouse, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.

 

HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

 

McCORMACK, J.

NATURE OF CASE

Stephen O’Bryant was a commercial truckdriver. He was killed during the course of his employment as the result of a motor vehicle accident. The representative of his estate sought to recover under O’Bryant’s occupational accident policy with Transguard Insurance Company of America, Inc. (Transguard). Transguard denied the claim on the ground that O’Bryant did not have a valid commercial driver’s license (CDL) at the time of the accident, and the personal representative brought this action against Transguard for breach of contract and bad faith. The policy stated that no benefits would be paid for any “[i]njury, loss or claim caused or contributed to by or resulting from … any loss occurring while the Insured Person … is operating a Vehicle without a valid [CDL].” The trial court granted summary judgment in favor of Transguard, and the personal representative appeals. We find that Neb.Rev.Stat. § 44–358 (Reissue 2010) applies so as to require a showing of causation between the breach and the loss, despite the language of the policy.

 

BACKGROUND

On September 19, 2003, O’Bryant, a member of the National Association of Independent Truckers, LLC, entered into a group vehicle master policy with Transguard. The policy, which was effective until July 1, 2004, included occupational accident coverage.

 

An insured person is defined under the policy as an independent contractor who is a member of the National Association of Independent Truckers in good standing and who is a certificate holder of the coverage. Under the “General Exclusions and Limitations” section, the policy states: “This Coverage Part does not cover and no benefits will be paid for any Injury, loss or claim caused or contributed to by or resulting from: … any loss occurring while the Insured Person, covered Co–Driver, Partner or Helper is operating a Vehicle without a valid [CDL].” On April 14, 2004, O’Bryant’s CDL was suspended due to an unsatisfied judgment arising out of an automobile accident.

 

On June 30, 2004, O’Bryant was involved in a semi-truck collision and sustained injuries resulting in his death. It is undisputed that O’Bryant’s CDL was still suspended at the time of the accident. O’Bryant’s beneficiaries made a claim with Transguard for benefits under the occupational accident coverage of the policy. Transguard denied the claim, and Sylvia Devese, as the personal representative for O’Bryant’s estate, brought this action against Transguard for breach of contract and bad faith.

 

Relying on the CDL provision quoted above, Transguard moved for summary judgment. Devese responded that Transguard was required to show causation between the absence of a valid CDL and the accident and that Transguard had failed to present any such evidence. The trial court granted summary judgment in favor of Transguard.

 

Devese appealed. On December 20, 2010, the Nebraska Court of Appeals summarily affirmed the judgment in favor of Transguard, citing Omaha Sky Divers Parachute Club, Inc. v. Ranger Ins. Co. (Omaha Sky Divers ). We granted Devese’s petition for further review on the grounds that Omaha Sky Divers was recently overruled by D & S Realty v. Markel Ins. Co. (D & S Realty ).

 

ASSIGNMENTS OF ERROR

Devese asserts that the Court of Appeals erred in (1) affirming the order of the trial court granting Transguard’s motion for summary judgment and (2) holding that Omaha Sky Divers was controlling.

 

STANDARD OF REVIEW

Summary judgment is proper when the pleadings and evidence at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

 

In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all favorable inferences deducible from the evidence.

 

When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

 

ANALYSIS

In Omaha Sky Divers, we addressed an aircraft insurance policy clause which stated, under the exclusions section, that the policy did not apply to any occurrence while the aircraft was operated by someone other than a pilot as set forth under the declarations section. The declarations section, in turn, specified that only pilots having a valid medical certificate will operate the aircraft. We held that the exclusion was clear and unambiguous. Despite the fact that the accident was not contributed to by any medical issues of the pilot, the insurance company was not required under the contract to show causation between the breach and the accident.

 

We further held that the exclusion did not constitute a warranty or a condition within the meaning of § 44–358. Section 44–358 states in part:

 

The breach of a warranty or condition in any contract or policy of insurance shall not avoid the policy nor avail the insurer to avoid liability, unless such breach shall exist at the time of the loss and contribute to the loss, anything in the policy or contract of insurance to the contrary notwithstanding.

 

Because § 44–358 did not apply to impose a causation requirement as a matter of law, the plain language of the policy controlled and we affirmed judgment in favor of the insurer.

 

At the hearing on its motion for summary judgment, Transguard argued that the language of the policy in this case was similar to the one discussed in Omaha Sky Divers. We agree. Both policies clearly make coverage dependent upon the existence of valid, specified licenses. We do not read the policies as requiring causation between those licenses and the loss.

 

But in D & S Realty, we overruled Omaha Sky Divers to the extent that we had concluded § 44–358 did not apply so as to require, as a matter of law, a showing of causation between the absence of the required license and the accident. D & S Realty involved a property insurance contract which stated that the carrier would not pay for loss caused by water damage if the building was vacant for more than 60 consecutive days prior to the loss. Looking at the provision’s purpose and function, we found that the relevant clause was a “condition,” as contemplated by § 44–358, and not an “exclusion.” Therefore, despite the plain language of the insurance contract, the insurer was required by § 44–358 to demonstrate a causal connection between the condition and the loss in order to avoid liability.

 

[4–6] We explained in D & S Realty that a condition subsequent is distinct from an exclusion. An exclusion is a limitation of liability, or a carving out of certain types of loss, to which the insurance coverage never applied. A preloss condition subsequent, in contrast, is a provision that allows insurers to suspend or avoid coverage for a loss that occurs while a failure of the condition exists after the risk has attached. We held that “increased hazard” clauses, such as the vacancy clause of the property insurance policy in issue in that case, were conditions subsequent and not exclusions. We said, “[R]egardless of an insurer’s labeling, a clause that requires an insured to avoid an increased hazard is a condition subsequent for coverage.” 0

 

We said that Omaha Sky Divers presented a similar classification problem: “The certification provision excluded coverage unless the pilot possessed the necessary medical certification, which was proof of the pilot’s medical fitness. The proof was intended to protect the insurer from the increased hazard of a pilot with health problems flying the plane.” 1 We overruled Omaha Sky Divers to the extent that it could be read to hold that increased hazard conditions are exclusions.2

 

As explained, the policy provision in Omaha Sky Divers avoided coverage for an occurrence while the plane was operated by a pilot without a medical certification. And the risk of loss had clearly attached. Thus, as a postattachment, preloss condition (subsequent) to the insurer’s obligation to pay benefits, the insured was required to maintain proof of a pilot’s medical fitness.

 

Maintaining proof of an insured’s qualification to perform a covered activity is the type of condition subsequent that § 44–358 was intended to address. The policy in Omaha Sky Divers did not provide that coverage would be voided for loss caused by the plane’s being operated by a medically unfit pilot. Clearly, the insurer could limit its coverage to loss occurring when the plane was operated by a qualified and medically fit pilot. That was the insured risk. But by requiring the insured to maintain proof of a pilot’s medical fitness regardless of any causal connectedness to the loss, the insurer avoided liability for a failure of condition that “in no way contributed to the accident,” 3 which was caused by a brake failure.

 

As we explained in D & S Realty, § 44–358 was intended to limit an insurer’s ability to avoid liability for a failure of preloss conditions subsequent that are “so broad that an insured’s violation of them is not causally relevant to the loss.” 4 Thus, we erred in Omaha Sky Divers by holding that the contribute-to-the-loss standard under § 44–358 did not apply to a preloss condition subsequent that required the insured to maintain proof of a pilot’s medical fitness to fly a plane.

 

Similarly, the issue here involves the distinction between an insured’s qualification to perform an activity and proof of the insured’s qualification. “License” has more than one meaning. It can be authorization to do what would otherwise be illegal.5 But a license is also proof that the holder is qualified to perform an activity.6 It is the latter sense that is relevant here. The policy does not purport to avoid coverage if the insured violated a motor vehicle statute.

 

We agree that an insurer can require an insured to have a valid CDL as a condition for coverage, because the license functions as proof that the insured is qualified to operate commercial vehicles. But if licensure is a requisite to being a qualified insured, the insurer would have presumably required this proof as part of the application process. Further, if an insured had falsely represented his or her qualifications in the application, then the insurer would have had reason to seek a revocation.

 

The availability of a revocation defense shows that the license provision was not intended to relieve Transguard of liability because an insured was never qualified to operate a commercial vehicle. Instead, the unlicensed driver provision operated to avoid liability for a loss, after the risk attached, if an insured was operating a commercial vehicle while he or she had failed to maintain a valid CDL. An insurance provision that conditions benefits based solely on whether the insured has failed to comply with a licensing or certification requirement seeks to broadly control a potential cause of loss—an unqualified insured.7

 

We conclude in this case that Transguard sought to avoid the risk of loss of an unqualified driver. As applied to the insured, the license requirement functions as a condition for coverage that the insured maintain proof of his or her continuing qualification. Because the provision imposes conditions for coverage on the insured’s conduct after the risk has attached, it is a preloss condition subsequent. As we explained in D & S Realty, there is no meaningful difference between a policy that excludes coverage unless specified conditions are met and one that provides coverage if specified conditions are met.8

 

But the lack of the license, in itself, did not show that O’Bryant was unqualified to operate a commercial vehicle. Transguard’s failure of a condition defense illustrates that the condition was broader than necessary to protect Transguard from assuming liability for the risk that O’Bryant was unqualified to operate commercial vehicles.9 A significant difference exists between a suspension of a license for failure to pay a judgment and a revocation or refusal of a license for reasons that show the licensee is unfit to drive a commercial vehicle. By requiring O’Bryant to maintain his CDL as a condition for coverage without any requirement that the loss occurred because the insured was unqualified to operate a commercial vehicle, Transguard could avoid liability for technical reasons. That is, it could avoid liability if O’Bryant’s license lapsed or was suspended for reasons that were unrelated to his qualifications.

 

Because of the condition’s excessive breadth and its failure to require any causal connectedness to the loss, it is the type of condition to which § 44–358 was intended to apply. Thus, Transguard could not avoid liability unless it showed that O’Bryant’s breach of the condition contributed to the loss.

 

We also disagree with Transguard that it has demonstrated a causal link between the breach and the loss because it was undisputed that O’Bryant was driving when he was not supposed to. The mere act of driving was not a breach of the condition. The breach was failing to maintain a valid CDL. Under § 44–358, Transguard was required to demonstrate a causal connection between the breach and the loss.

 

Transguard did not present any evidence as to the cause of the accident or O’Bryant’s abilities as a commercial driver. Therefore, viewing the evidence in the light most favorable to Devese, it was inappropriate to issue summary judgment in favor of Transguard. We reverse the decision of the Court of Appeals summarily affirming the trial court’s order of summary judgment and remand the cause to the Court of Appeals with directions to remand the cause to the trial court for further proceedings consistent with this opinion.

 

CONCLUSION

For the foregoing reasons, we reverse the decision of the Court of Appeals and remand the cause with directions.

 

Reversed and remanded with directions.

 

WRIGHT, J., not participating.

 

Omaha Sky Divers Parachute Club, Inc. v. Ranger Ins. Co., 189 Neb. 610, 204 N.W.2d 162 (1973).

 

D & S Realty v. Markel Ins. Co., 280 Neb. 567, 789 N.W.2d 1 (2010).

 

Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011).

 

Id.

 

State v. Peterson, 280 Neb. 641, 788 N.W.2d 560 (2010).

 

Omaha Sky Divers, supra note 1.

 

D & S Realty, supra note 2.

 

See id.

 

See id.

 

0. Id. at 581, 789 N.W.2d at 13.

 

1. Id. at 580, 789 N.W.2d at 13.

 

2. D & S Realty, supra note 2.

 

3. Omaha Sky Divers, supra note 1, 189 Neb. at 612, 204 N.W.2d at 163.

 

4. D & S Realty, supra note 2, 280 Neb. at 580, 789 N.W.2d at 13.

 

5. See Syracuse Rur. Fire Dist. v. Pletan, 254 Neb. 393, 577 N.W.2d 527 (1998).

 

6. See, Mulholland v. DEC Int’l, 432 Mich. 395, 443 N.W.2d 340 (1989); Osborn v. Hertz Corp., 205 Cal.App.3d 703, 252 Cal.Rptr. 613 (1988); Asdourian v. Araj, 38 Cal.3d 276, 696 P.2d 95, 211 Cal.Rptr. 703 (1985).

 

7. See Robert Works, Insurance Policy Conditions and the Nebraska Contribute to the Loss Statute: A Primer and A Partial Critique, 61 Neb. L.Rev. 209 (1982).

 

8. See, D & S Realty, supra note 2; Works, supra note 17.

 

9. See Works, supra note 17.