In American Home Assurance Company v. Cat Tech, L.L.C., No. 10-20499 (5th Cir. Oct. 5, 2011) Ergon Refining, Inc. (“Ergon”) hired Cat Tech, L.L.C. (“Cat Tech”) to service a hydrotreating reactor at its Mississippi refinery. In the course of servicing the reactor, Cat Tech damaged several of the reactor’s components. The matter was submitted to arbitration and the arbitrators awarded Ergon almost $2 million, including damages, prejudgment interest, attorney’s fees, and an offset for the unpaid contract price. Cat Tech sought indemnification under two insurance policies: (1) a commercial general liability policy issued by American Home Assurance Company (“AHA” ), and (2) a commercial umbrella policy issued by National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“NUFIC”). AHA and NUFIC brought action against insured servicing company seeking declaratory judgment that they did not have duty to indemnify company for damages awarded to Ergon in arbitration. The insurers argued that the “your work” exclusion found in both policies precluded coverage for damage to the reactor. The “your work” exclusion precludes coverage for: “Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard.” This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. The policies define “your work” as “(1) [w]ork or operations performed by you or on your behalf; and (2) [m]aterials, parts or equipment furnished in connection with such work or operations.” The District Court found the insurers had no duty to indemnify Cat Tech based on that exclusion. Cat Tech appealed. The Fifth Circuit explained that the following three categories of property damage were potentially at issue: (1) property damage to the specific parts of Ergon’s reactor upon which Cat Tech performed defective work, (2) property damage to those parts of the reactor upon which Cat Tech performed non-defective work but were nonetheless damaged, and (3) damage to other Ergon property, upon which Cat Tech did not work. The Court concluded that the “your work” exclusion precluded coverage for the first two categories, but not the third. The court found that the arbitration award was far too vague in its description of the damage and how the damage related to Cat Tech’s work. Accordingly, the court reversed the summary judgment award and remanded the case for the District Court to conduct additional fact-finding to determine whether the damage was limited to those components upon which Cat Tech worked or instead included components unrelated to Cat Tech’s operations. Technorati Tags: ADR, law, arbitration  

The Texas Department of Transportation won recently a domain name dispute for the domain name DontMessWithTexas.com. As readers may know, the Department uses the slogan Don’t Mess with Texas in its anti-litter campaign. Respondent, Privacy Protect.org / Domain Admin, did not submit a response. Under Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Resolution Policy (the “Policy”) the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: The domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights. The panel found that the Respondent’s domain name is confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s mark, omitting only an apostrophe and the spaces between words, and adding the generic top-level domain (“gTLD”) “.com”. Respondent has no rights or legitimate interests in respect of the domain name. The Panel concluded that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services under the Policy or a legitimate noncommercial or fair use under Policy. The domain name has been registered and is being used in bad faith. The panel reasoned that “Respondent’s operation of a confusingly similar domain name will likely lead some Internet users to visit Respondent’s website, when they intended to visit Complainant’s. Inevitably, a portion of these misdirected users will access the competing links displayed on Respondent’s site. ” The Panel found that this type misdirection constitutes use in bad faith under Policy. The panel found that the three elements of the Policy were satisfied and ordered that the <dontmesswithtexas.com> domain name be transferred to the Complainant. See Texas Department of Transportation v. PrivacyProtect.org Claim Number FA1108001402743. Technorati Tags: ADR, law, arbitration

The International Chamber of Commerce (“ICC”) will host its 9th Annual Miami Conference in Miami on Nov. 6, 2011. The event will launch the new ICC Rules of Arbitration, which have been revised to take into account new developments in international arbitration practice. Read more about the rules here. You may download the conference program here. Online registration is here. Technorati Tags: arbitration, ADR, law

The following bills relating to alternative dispute resolution were introduced by the 112nd U.S. Congress. The session convened in Washington, D.C. on January 3, 2011 and will end on January 3, 2013. Click on the bill number to read its text and on the status link to find the bill’s most recent legislative action. Bills that passed: Patent Reform Act of 2011 (a.k.a. America Invents Act). The Act provides, among other things that parties to a derivation proceeding may resolve the dispute via arbitration. See Section 135(f). H.R. 1249; Status. H.R. 1249 was signed by President Obama on Sept. 16, 2011 and became Public Law No. 112-29. Bills still pending: Consumer Mobile Fairness Act of 2011. The bill would amend title 9 of the United States Code to prohibit mandatory arbitration clauses in contracts for mobile service. S. 1652; Status. Disaster Recovery Act of 2011. The bill would create a dispute resolution program to facilitate an efficient recovery from major disasters. S. 1630; Status. Personal Data Protection and Breach Accountability Act of 2011. As introduced, the bill provides that “the rights and remedies afforded by this section shall not be abridged or precluded by any predispute arbitration agreement. S. 1535 IS; S. 1535 RS; Status. Emergency Jobs to Restore the American Dream Act. The bill would create an emergency jobs program during 2012 and 2013. The bill provides that each unit of general local government that is an entitlement community and each State that receives funding under the Act shall agree to the arbitration procedure described in the Act to resolve certain disputes. H.R. 2914; Status. American Specialty Agriculture Act. The Act would create a non-immigrant H-2C work visa program for agricultural workers and provides that any H-2C worker may, as a condition of employment with an employer, be subject to mandatory binding arbitration and mediation of any grievance relating to the employment relationship. H.R. 2847; Status. Arbitration Fairness Act of 2011. Declares that no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment, consumer, or civil rights dispute. S.987; Status. H.R.1873; Status. Labor Relations First Contract Negotiations Act of 2011. Amends the National Labor Relations Act to require mediation and, if necessary, binding arbitration of initial contract negotiation disputes. H.R.129; Status. Surface Transportation Board Reauthorization Act of 2011. Certain appropriations for the Surface Transportation Board, including requiring the Board to establish a binding arbitration process to resolve rail rate, practice, and common carrier service disputes. S.158; Status. Endocrine Disruptor Screening Enhancement Act of 2011. “In the event of any dispute about an appropriate share or a fair method of determining an appropriate share of applicable costs of the testing requirements in a test order, any person involved in the dispute may initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service or a hearing with a regional office of the American Arbitration Association.” H.R.553; Status. Non-Federal Employee Whistleblower Protection Act of 2011. It includes provisions on the nonenforceability of waivers and arbitration of disputes. S.241; Status. National Guard Technician Equity Act. Provides for a technician’s rights of grievance, arbitration, appeal, and review beyond the current stage of the adjutant general of the jurisdiction concerned. H.R.1169; Status. Postal Operations Sustainment and Transformation Act of 2011. Section 401 of the Act includes arbitration and labor dispute guidelines. S.1010; Status. Soledad Canyon High Desert, California Public Lands Conservation and Management Act of 2011. Advises the use of arbitration under Subchapter IV of chapter 5 of section 5 of the USC. S.759; Status. FAA Air Transportation Modernization and Safety Improvement Act of 2011. Requires the FAA Administrator and employee bargaining representatives, if their own negotiations and the services of the Federal Mediation and Conciliation Service (FMCS) have failed to lead to an agreement, to submit their controversy to the Federal Service Impasses Panel, subject to specified procedures, for binding arbitration. H.R.658; Status. Medical Care Access Protection Act of 2011 (MCAP Act). The limitations within the act apply to arbitration, and nothing in the act is meant to supersede arbitration. S.197; Status. Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011. Provides that, “whether by arbitration or other means, in any health care lawsuit, the court shall supervise the arrangements for payment of damages to protect against conflicts of interest that may have the effect of reducing the amount of damages awarded that are actually paid to claimants.” S.1099; Status. S.218; Status. H.R.5; Status. U.S. Postal Service Improvements Act of 2011. Authorizes arbitration boards to consider the financial condition of the USPS in rendering decisions. S.353; Status. Preventing Homeowners from Foreclosure Act of 2011. Directs the Secretary of Housing and Urban Development (HUD) to implement a competitive grants program for states and local governmental entities to establish mediation programs to assist mortgagors under home mortgages facing foreclosure on such mortgages. H.R. 1131; Status. Local Jobs for America Act. The bill provides that each unit of general local government that is an entitlement community and each State that receives funding under this Act shall agree to the arbitration procedure described in Act to resolve certain disputes. H.R. 2828; Status. Preserving Homes and Communities Act of 2011. Directs the Secretary of HUD to: (1) establish a grant program to make competitive grants to state and local governments to establish mediation programs that assist mortgagors facing foreclosure, and (2) develop and implement a plan to monitor conditions and trends in home ownership and the mortgage industry and the effectiveness of public and private efforts to reduce mortgage defaults and foreclosures. S.489; Status. H.R.1477; Status. Restoring Democracy in the Workplace Act. Declares that a specified rule prescribed by the National Mediation Board relating to representation election procedures shall have no force or effect. H.R. 548; Status. Community Access Preservation Act (CAP). Amends the Communications Act of 1934. Sets forth provisions regarding: (1) LGS or state enforcement, (2) nonbinding mediation and court proceedings concerning disputed support amounts, […]