
    MOUNTAIN FUNDING, INC., Plaintiff, v. FRONTIER INSURANCE CO., Defendant.
    No. 01 C 2785.
    United States District Court, N.D. Illinois, Eastern Division.
    Aug. 9, 2004.
    
      Howard L. Teplinsky, Seidler & McEr-lean, Chicago, IL, Counsel for Plaintiff.
    Cornelius F. Riordan, Michael Palermo, Jr., Riordan, Donnelly, Lipinsky & McKee, Ltd., Chicago, IL, Counsel for Defendant.
   MEMORANDUM OPINION AND ORDER

DENLOW, United States Magistrate Judge.

This case comes before this Court on a motion by Frontier Insurance Co. (“Frontier” or “Defendant”) to stay this proceeding in favor of a New York state court insurance rehabilitation proceeding that is adjudicating all claims — including a claim from Mountain Funding, Inc. (“Plaintiff’) — against Defendant. See In the Matter of the Rehabilitation of Frontier Ins. Co., No. 1357/03 (N.Y. Sup.Ct. order dated May 10, 2004). For the reasons set forth below, Defendant’s motion to stay is granted.

I. BACKGROUND FACTS

The facts of this case have been recited in great detail in Judge Ronald A. Guzman’s opinion in Mountain Funding, Inc. v. Frontier Insurance Co., No. 01 C 2785, 2003 WL 21518556, 2003 U.S. Dist. LEXIS 11274 (N.D. Ill. June 30, 2003). Therefore, what follows are the facts materially pertinent to a decision on Defendant’s motion to stay proceedings, which is now before the Court.

A. PROCEEDINGS BEFORE JUDGE GUZMAN

On November 29, 2000, Plaintiff filed this lawsuit in the Superior Court of New Jersey as a result of Defendant’s alleged failure to pay on a surety bond issued by Defendant. Defendant then removed this case to federal district court in New Jersey. Subsequently, the case was transferred to the Northern District of Illinois and assigned to Judge Guzman.

On August 25, 2001, the Superintendent of Insurance for the State of New York filed a rehabilitation proceeding against Defendant in the Supreme Court of New York. In the Matter of the Application of Gregory V. Serio, No. 405090/01 (N.Y. Sup. Ct. order dated Oct. 10, 2001). The New York rehabilitation court entered an order enjoining and restraining any person from commencing or prosecuting lawsuits or proceedings against Defendant for 180 days. Pursuant to that order, Defendant moved Judge Guzman to stay these proceedings, which he did on November 13, 2001. Six months later, Judge Guzman accepted briefs and heard oral arguments on the issue of continuing the stay indefinitely, which he declined to do; on May 15, 2002, Judge Guzman lifted the Stay of Proceedings and permitted discovery to proceed.

Defendant then filed a motion to reconsider the May 15, 2002 order lifting the Stay of Proceedings. Defendant argued that the district court should abstain from this action because New York’s rehabilitation court is the proper court to handle Plaintiffs underlying surety bond dispute because the court stands in a “special relationship” with the facts and issues involved in the case. However, on June 30, 2003, Judge Guzman denied the motion to reconsider. Mountain Funding, Inc., No. 01 C2785, 2003 WL 21518556, *6, 2003 U.S. Dist. LEXIS 11274, at *15 (N.D. Ill. June 30, 2003). Judge Guzman explained that abstention is the exception to the norm in federal court and that Defendant failed to establish that the New York rehabilitation court stands in a “special relationship” with the facts and issues involved in this case. Id., 2003 WL 21518556, *5, 2003 U.S. Dist. LEXIS 11274, at *14. Judge Guzman further noted that “there is an absence of information concerning the nature of the [New York rehabilitation] proceedings, what types of claims are being litigated, and a schedule for the completion of rehabilitation.” Id. The parties then consented to have this case tried before this Court pursuant to 28 U.S.C. § 636(c)(1). The case then proceeded to the verge of trial before Defendant brought this motion for a stay, claiming that the concerns raised by Judge Guzman now have been addressed and resolved by an order entered by the New York rehabilitation court.

B. NEW YORK REHABILITATION PROCEEDINGS

On May 10, 2004, the New York rehabilitation court entered a formal order approving an interim procedure for judicial review of the rehabilitation proceedings for adjudication of claims. In the Matter of the Rehabilitation of Frontier Ins. Co., No. 1357/03 (N.Y. Sup.Ct. order dated May 10, 2004). The purpose of the rehabilitation proceedings is to facilitate judicial review of Frontier’s claimants, to expedite the resolution of such claims, to prevent the unnecessary expenditure of assets, and to provide a fair, equitable, and unified procedure for all claimants of Frontier. See Def. Mot. to Stay, Ex. Bl, at 6. “The procedure will enable the Rehabilitator to dispose of surety claims, which would not be covered by the majority of Guaranty Associations, and other claims as the Court deems appropriate ... while offering due process to all claimants who object to his recommendations.” Def. Mot. to Stay, Ex. B2, at 2.

The rehabilitator will examine each claimant’s claim and make a determination regarding that claim, which will act as a recommendation to the claimant. Id. The rehabilitator then must serve the claimant a “Notice of Determination” for each claim, which advises the claimant of the recommendation amount. Id. The claimant may object to the amount by serving a written objection upon the rehabilitator within sixty days. Id. The rehabilitator must contact the claimant and attempt to resolve any objection. Id. at 3. In the event the objection is not resolved, the matter is referred to a court-appointed referee who hears the claimant’s objection and reports on its validity. Id. Upon the issuance of the referee’s report, either the claimant or the rehabilitator may petition the court for an order confirming the report. Id. In the event that no objection is received, the rehabilitator shall make an ex parte motion no earlier than seventy-five days after the date of the Notice of Determination for an order approving and confirming the adjudications of the claim. Id.

As a result of the new information detailed in the May 10, 2004 order, Defendant filed the present Motion to Stay Proceedings under the principles of abstention, arguing that this Court now has enough information to conclude that the New York rehabilitation court is in a special relationship of technical oversight or concentrated review of Plaintiffs claims.

II. LEGAL STANDARD

Abstention principles can be raised and revisited at any time during a proceeding. Prop. & Cas. Ins. Ltd. v. Cent. Nat’l Ins. Co. of Omaha, 936 F.2d 319, 321 (7 th Cir.1991). There are three accepted abstention doctrines that can be applied depending on the underlying facts of the federal case at issue. See Colorado River Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The principles espoused by the United States Supreme Court in Burford v. Sun Oil provide the analytical framework within which to decide whether abstention in favor of the state rehabilitation proceedings is appropriate in this case.

In Burford, the Supreme Court determined that a federal court’s abstention is appropriate when judicial review in the designated state forum is “expeditious and adequate,” in order to avoid review in the federal courts that could cause “delay, misunderstanding of local law and federal conflict with state policy.” 319 U.S. at 327-34, 63 S.Ct. 1098. Additionally, the Supreme Court held that federal courts could give rise to “intolerable confusion” that a specialized state forum seeks to avoid. Id.

Subsequently, the Seventh Circuit has interpreted Burford to hold that abstention is appropriate in two circumstances. Prop. & Cas. Ins. Ltd., 936 F.2d at 322. First, courts should abstain from deciding “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the present case.” Id. Second, courts should abstain from deciding cases where the review would be “disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Id.

III. DISCUSSION

In this case, the Court first must determine if either of the two Burford circumstances are present. It is clear that there is no “difficult question of state law” present, as this case involves a surety bond dispute to which well-established legal principles apply. Consequently, the first Burford circumstance is not present. However, the second Burford circumstance is present. State insurance rehabilitation proceedings are important state efforts and are of great public concern. See generally Prop. & Cas. Ins. Ltd., 936 F.2d at 319; Hartford Cas. Ins. Co. v. Borg-Warner Corp., 913 F.2d 419 (7th Cir.1990). Pursuant to the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015, states have a great interest in maintaining a uniform insurance rehabilitation process and have assumed primary responsibility for regulating the insurance industry. Hartford, 913 F.2d at 426. As a result, the New York rehabilitation process is a “matter of substantial public concern” and therefore abstention may be appropriate in this case. See Prop. & Cas. Ins. Ltd., 936 F.2d at 322.

This abstention inquiry arises because federal court review may disrupt a New York State’s efforts to establish a coherent public policy. Therefore, two essential elements are necessary for this Court to abstain. Prop. & Cas. Ins. Ltd., 936 F.2d at 323. First, the state must offer some forum in which claims may be litigated. Id. Second, that forum must be “special — it must stand in a special relationship of technical oversight or concentrated review to the evaluation of those claims.” Id. There is no dispute that New York has provided a state forum in which Plaintiffs claims may be litigated. As a result, the issue in this case is whether the New York rehabilitation proceeding has a special relationship of technical oversight or concentrated review to evaluate Plaintiffs claims.

The Seventh Circuit addressed this issue in the factually similar case, Property & Casualty Insurance, Ltd. v. Central National Insurance Co. of Omaha, 936 F.2d 319 (7th Cir.1991). In that case, Property & Casualty Insurance, Ltd. (“PCIL”) filed a complaint against Central National Insurance Co. (“Central National”) because of a contract dispute regarding a reinsurance agreement. Id. at 320. The parties had conducted significant amounts of discovery and had filed cross-motions for summary judgment when Nebraska’s director of insurance placed Central National into rehabilitation. Id. The Nebraska rehabilitator petitioned the district court to either stay or dismiss the district court case, and the district court held that the principles announced in Burford required abstention. Id. PCIL appealed. Id. at 320, 63 S.Ct. 1098.

On appeal, the Seventh Circuit could not determine if the rehabilitator commenced the type of proceeding that warranted abstention under Burford. Id. There was no indication that the rehabilitator attempted to commence a proceeding in any special relationship of technical oversight or concentrated review to the evaluation of creditor claims against Central National. Id. The Seventh Circuit then investigated the possible types of rehabilitation proceedings available to Central National and found that there were three possible types of rehabilitation proceedings available, noting three examples to help determine what types of rehabilitation proceedings warranted abstention:

[The rehabilitation of Insurer] A may involve nothing more than a change in management. The rehabilitation of Insurer B may involve nothing more than a merger with another insurer to take advantage of needed economies of scale. The rehabilitation of Insurer C may involve, by itself or in combination with some other response, a specialized claims proceeding for the purpose of centrally and uniformly resolving the claims of Central National’s creditors. All of these actions are classified as ‘rehabilitation proceedings,’ yet not all of them involve a specialized proceeding; only the rehabilitation of Insurer C implicates Burford.

Id. at 320, 324, 63 S.Ct. 1098. The Seventh Circuit held that the record contained no plan of rehabilitation and that the reha-bilitator openly expressed uncertainty as to how Central National’s rehabilitation would progress. Id. at 325, 63 S.Ct. 1098. The court further noted that the rehabili-tator may be gathering Central National’s creditors in one forum to litigate their claims with uniformity, but there was no such evidence contained on that record. Id. at 326, 63 S.Ct. 1098. As a result, the Seventh Circuit remanded the case to the district court to determine if the Nebraska forum involved the type of specialized proceeding that warranted abstention. Id.

On June 30, 2003, Judge Guzman shared the same concerns as the Seventh Circuit when he denied Defendant’s motion to reconsider the May 15, 2002 order lifting the stay of proceedings in this case. He lacked sufficient information to determine whether the New York rehabilitation proceedings were in a special relationship of technical oversight or concentrated review that would warrant abstention under Bur-ford. However, with the new information set forth in the May 10, 2004 New York Supreme Court order regarding the rehabilitation court, this Court now knows exactly what type of rehabilitation proceedings the New York court employs and is in a better position to determine if those proceedings are in a special relationship of technical oversight or concentrated review.

After a review of the New York rehabilitation proceedings, it is clear that those proceedings are identical to the rehabilitation of “Insurer C” in Property & Casualty Insurance Ltd. and therefore satisfies the Burford requirements. The New York rehabilitation proceedings clearly are in a special relationship of concentrated review of Plaintiffs surety bond claim, as their purpose is to facilitate judicial review of all of Frontier’s claimants, to expedite the resolution of such claims, to prevent the unnecessary expenditure of assets, and to provide a fair, equitable and unified procedure for all claimants of Frontier. See Def. Mot. to Stay, Ex. Bl.

It is important to note also that the New York rehabilitation court is adjudicating thousands of claims made against Defendant, many of which are similar to Plaintiffs surety bond claims alleged in this lawsuit. At the inception of the New York rehabilitation proceedings, Defendant’s records showed more than 12,000 open unresolved claims, with estimated indemnity loses of more than $475 million and estimated loss adjustment expenses of more than $60 million. See id. Furthermore, “open surety claim counts at the inception of the proceeding were approximately 2,400 with estimated surety indemnity and loss adjustment reserves of approximately $55 million.” Id. This detailed and uniformed proceeding is exactly what the Seventh Circuit in Property & Casualty Insurance Ltd. found would satisfy the Burford requirements.

Additionally, this case invokes important policy considerations that support abstention. As noted in Hartford Casualty Insurance Co. v. Borg-Warner Corp., 913 F.2d at 426, the importance of state policies at issue go far beyond the present litigation. Mountain Funding should not be able to jump ahead of Frontier’s other creditors because this litigation is outside the New York rehabilitation proceeding and must not be able to set a precedent for other claimants to do the same. Additionally, both this Court and the New York rehabilitation proceeding are faced with the same surety bond dispute. The possibility of inconsistent decisions between this Court and the New York rehabilitation proceeding could lead to confusion. Furthermore, allowing this case to proceed would lead to a system where the state of New York would not control the ultimate distribution to Frontier’s creditors. Id. This type of federal usurpation would be inconsistent with the McCarren-Ferguson Act and general notions of comity. Id.

Additionally, Frontier has been defending similar litigation in the Northern District of Illinois in Mallon v. Frontier Insurance Co., case number 01 C 2556. After New York’s May 10, 2004 order, Frontier filed a Motion to Stay Proceedings in the Mallon case. On July 16, 2004, Judge Harry D. Leinenweber stayed the proceedings because the procedure outlined by the Supreme Court of New York comported with the abstention requirements as set out in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), and Property & Casualty Insurance Ltd. v. Central National Insurance Co. of Omaha, 936 F.2d 319 (7th Cir.1991). Mallon v. Frontier Insurance Co., No. 01 C 2556 (N.D. Ill. minute order dated July 16, 2004).

IY. CONCLUSION

For the above stated reasons, Defendant’s Motion to Stay Proceedings is granted.  