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impermissible because they were not asserted against "opposing parties"
within the meaning of Rule 13 of the Federal Rules of Civil Procedure.
Furthermore, to the extent these counterclaims sought to recover against the
State of North Carolina for the conduct of the Commissioner and his deputy,
such counterclaims were barred by sovereign immunity and the Eleventh
Amendment to the U.S. Constitution. However, the North Carolina
Commissioner of Insurance, in his representative capacity as the rehabilitator
of Beacon, is subject to those defenses which could be raised against Beacon,
and could not have dismissed those counterclaims of the defendants which
could have properly been brought against Beacon.
Ohio
Benjamin v. Credit Gen. Ins. Co., 2005 Ohio 1450 (Ohio Ct. App. 2005). Liquidator
claimed the liquidation court erred by ruling that the reinsurer’s prior federal
court actions against the liquidator did not violate the provisions in the
liquidation orders. The court found that the reinsurer’s filing of a federal show
cause motion against the liquidator violated the plain terms of the liquidation
orders and the Insurers Supervision, Rehabilitation, and Liquidation Act, Ohio
Revised Code Chapter 3903. That chapter specifically prohibits commencing,
maintaining, or further prosecuting an action against the liquidator of the
insolvent insurer’s estate. In addition, the reinsurer’s federal court actions were
contrary to the legislature’s grant of exclusive jurisdiction to the Franklin County
Court of Common Pleas as the forum for hearing claims and proceedings
relating to the insolvent insurer’s liquidation estate.
Benjamin v. Ernst & Young, LLP , 855 N.E.2d 128, 167 Ohio App. 3d 350, 358
(Ohio Ct. App. 2006). In response to Superintendent’s action, defendants
asserted affirmative defenses and counterclaims and sought to transfer the
matter to the Ohio Court of Claims. The Superintendent sought dismissal of the
counterclaims and to strike the defenses. The trial court granted the
Superintendent’s motion and remanded the entire action to the common pleas
court. On appeal, the court initially noted that defendants had standing to argue
the denial of relief under the attorneys’ motions, as the potential res judicata
effect of the rulings would have an adverse effect on the firm. As the
counterclaims were asserted against the Superintendent in her capacity as a
regulator, which was a separate entity from the Superintendent as liquidator,
the claims could not stand pursuant to Ohio Revised Code Sections 3903.04 and
3903.14. Pursuant to Ohio Revised Code § 3903.04(A), the Superintendent as
regulator could not have brought the complaint.
Boedeker v. Rogers, 140 Ohio App. 3d 11 (Ohio Ct. App. 2000). Judgment
denying Liquidator’s motion for an order of substitution was reviewable by
the Court of Appeals. The judgment conclusively denied a provisional remedy to
the Liquidator for which no meaningful relief could be provided if review were
delayed until the close of all proceedings and was thus reviewable
under Ohio Revised Code § 2505.02(B)(4). It also may have been reviewable as
an order affecting a substantial right made in a special proceeding under Ohio
Revised Code § 2505.02(B)(2).
Fabe v. Columbus Ins. Co., 68 Ohio App.3d 226 (1990). The court held that an
order staying action by the Superintendent of Insurance seeking to liquidate
insolvent insurer's claim against reinsurers, pending binding arbitration
pursuant to insurer's written agreement, was final appealable order under
either of the following rationale: (1) liquidation was "special proceeding" and
order affected "substantial right" of superintendent as liquidator; and (2) order
required entire case and all issues to be submitted to arbitration, effectively