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Newmont U.S.A. Limited v. Insurance Co. of North America

August 11, 2010

NEWMONT U.S.A. LIMITED, FORMERLY KNOWN AS NEWMONT MINING CORPORATION, AND N.I. LIMITED, PLAINTIFFS-COUNTER-CLAIM-DEFENDANTS-APPELLANTS-CROSS-APPELLEES,
v.
INSURANCE COMPANY OF NORTH AMERICA, DEFENDANT-COUNTER-CLAIMANT-APPELLEE-CROSS-APPELLANT.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:06-CV-1178-ZLW-BNB).

The opinion of the court was delivered by: Tymkovich, Circuit Judge

PUBLISH

Before TACHA, ALARCÓN*fn1 , and TYMKOVICH, Circuit Judges.

In this insurance matter, Newmont U.S.A. Limited (Newmont), f/k/a Newmont Mining Corporation, and N.I. Limited (NIL) brought suit against the Insurance Company of North America (INA). Newmont sought a declaratory judgment that NIL was no longer liable to INA for reinsurance arising out of policies INA had issued to Newmont, and an injunction barring INA from proceeding to arbitrate the companies' disputes. The district court compelled arbitration and the arbitration panel found in INA's favor, awarding money damages. The district court subsequently modified the portion of the arbitration panel's award concerning post-judgment interest, and entered final judgment.

On appeal, Newmont and NIL argue the district court erred by compelling arbitration. In a cross-appeal, INA contends the district court erred by altering the arbitration panel's post-judgment interest rate determination and setting the post-judgment interest accrual date.

Our jurisdiction arises under 28 U.S.C. § 1291. We find the district court properly compelled arbitration. We also conclude the district court should have applied the post-judgment interest rate set forth in the parties' agreements and incorrectly determined the start date for the accrual of post-judgment interest. Accordingly, we AFFIRM in part and REVERSE in part.

I. Background

During the early 1980s, INA issued general liability policies to Newmont, the parent corporation of NIL,*fn2 and certain of its subsidiaries and affiliates. INA and NIL, in turn, entered into three successive reinsurance agreements under which NIL committed to reinsure INA with respect to the policies INA had issued to Newmont. The last effective date of the applicable Reinsurance Agreements was July 18, 1985.

For our purposes, the Reinsurance Agreements may be considered identical. Several provisions of the Agreements are relevant to our analysis of whether and when arbitration may be compelled. Article X of the Reinsurance Agreements provides: "As a condition precedent to any right of action hereunder, any dispute arising out of this Agreement shall be submitted to the decision of a board of arbitration . . . ." Aplt. App. at 22. And, Article XIII of the Reinsurance Agreements states: "Either party will pay to the other an interest charge at the monthly rate of . . . 1.5%[] on any amount that is not paid within the time required by this Agreement, said charge to commence at the time any such payment is required by this Agreement." Id. at 23. Pennsylvania law governs the Reinsurance Agreements.

In the early 1980s, the State of Colorado brought claims against two of Newmont's subsidiaries, the Idarado Mining Company and the Resurrection Mining Company. In response, Newmont filed a declaratory judgment action against INA in state court, seeking defense coverage and indemnity from INA under the general liability policies.

In 1997, INA and Newmont entered into a Settlement Agreement relating to the general liability policies. The Recitals section of the agreement states "this settlement resolves all claims of Newmont for insurance coverage for Idarado Environmental Claims" and "this settlement resolves only Newmont's claims arising from the Idarado mining site and does not settle or resolve Newmont's, or any other entity's, claims arising from the Resurrection mining site or any other site . . . ." Id. at 141S42. The 1997 Settlement Agreement also provides:

INA . . . release[s] [NIL] from all claims . . . relating to the Declaratory Judgment Action . . . , which claims arise from any . . . reinsurance contract with [NIL]. The foregoing to the contrary notwithstanding, this release shall not apply to (I) claims by INA against [NIL] for reinsurance coverage . . . , which claims are based on alleged occurrences at the California Gulch Mining Site [(i.e., the Resurrection Site)] or any other site other than the Idarado Mining Site . . . .

Id. at 147S48.

In 2002, INA and Newmont entered into another Settlement Agreement. The Recitals section of that agreement states "this settlement resolves all claims of Newmont for insurance coverage for Resurrection Environmental Claims" and "the [p]arties intend hereby to compromise, settle and finally resolve their disputes concerning the alleged application of the [general liability] [p]olicies to the ...


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