North River Ins Co v. Transamerica Occiden ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit June 5, 2003
______________________________________ Charles R. Fulbruge III
Clerk
No. 02-10775
______________________________________
NORTH RIVER INSURANCE COMPANY; UNITED STATES FIRE INSURANCE
COMPANY
Plaintiffs - Appellees,
VERSUS
TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY
Defendant - Appellant.
______________________________________________________
Appeal from the United States District Court
For the Northern District of Texas, Dallas
99-CV-682-L
Before: DAVIS, CYNTHIA HOLCOMB HALL*, and EMILIO M. GARZA,
Circuit Judges.
PER CURIAM**:
The district court correctly refused to dismiss the action
on the ground that appellees were not real parties in interest.
*U.S. Circuit Judge, Ninth Circuit, sitting by designation.
**
Pursuant to 5th Cir. R 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Under Fed. R. Civ. Pro. 17(a), International Insurance Company’s
ratification of the action permitted the action to be prosecuted
by appellees.
Appellant has not met its heavy burden on the issue of
whether appellees have waived arbitration. Lawrence v.
Comprehensive Bus. Servs. Co., 833 F.2d 1159, 1164 (5th Cir.
1987). Appellees were forced to use the discovery process in
part because appellant denied it was subject to an arbitration
agreement. Any prejudice to appellant as a result of appellees’
failure to timely file a motion to compel arbitration was
remedied by the district court’s sanctioning of appellees for
such failure.
Timeliness issues should be raised to the arbitrator and we
therefore express no opinion on the merits of appellant’s
arguments regarding the statute of limitations.
It is not disputed that appellant was clearly a party to the
1985 and 1987 Line Slips. While appellant was not listed on the
signature page of the treaties, the Line Slip’s agent signed the
treaties and corresponding cover notes on behalf of the entire
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Line Slip. Moreover, appellant received premiums from and paid
out its share of losses to appellees in proportion to its
percentage share of the Line Slip. Appellant also comes forward
with no evidence of any agreement between itself and the
companies that it alleges were fronting for it. It is also not
disputed that the Line Slip’s agent had no power to bind either
the alleged fronting companies or appellant to shares greater
than or less than their participation in the Line Slip. We
therefore affirm the district court’s finding that appellant was
a party to the treaties at issue in this case. Those treaties
had a clear, unambiguous arbitration clause.
AFFIRMED.
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