Download PDF - Goodmans

were not ultra vires acts. There were no allegations of self‐dealing against
the defendants. Upon application of the Burford abstention doctrine, the
court declined to decide the parties’ summary judgment motions and
granted the defendants’ motion to dismiss the action.
Curiale v. Ambassador Group, Inc. et al., Supreme Court, New York County,
IAS Commercial Part 14. This case involves an action by the New York
Superintendent of Insurance as Liquidator of Horizon Insurance Co. against
some of its former officers, directors and its former accountants. The
defendants raised a variety of affirmative defenses, including assertions that
the Superintendent’s claims were barred by his own culpable conduct and
contributory negligence. The defendants’ theory was that the
Superintendent, as Regulator, was insufficiently vigilant or committed errors
during the regulatory process, leading to the insolvency of Horizon. The
court ruled that although the Superintendent as Liquidator was a party to
the action, the Superintendent as Regulator is a “different person” and was
a non‐party to the action. Accordingly, the defenses addressed to the
conduct of the Superintendent as Regulator were dismissed.
In the Matter of the Application of the Attorney‐General of the State of New
York v. The North America Life Ins. Co., 82 N.Y. 172 (1880). The state, by
authorizing a fund for the security of state policyholders, incurs no
responsibility except as a depository.
Klein v. New York Title & Mortgage Co., 155 Misc. 513, 279 N.Y.S. 931 (1935).
The court held that the insurance commissioner as rehabilitator of a title and
mortgage company, was liable as a statutory receiver with respect to personal
injuries sustained by a tenant of the property under rehabilitation. A statutory
receiver is inherently liable in actions upon either passive or active negligence.
North Carolina
Ohio
North Carolina, ex rel. Long v. Alexander & Alexander Services, Inc., 711 F. Supp.
25 (E.D.N.C. 1989), 1989 W.L. 38567 (E.D.N.C., April 12, 1989). In an action
commenced by the North Carolina Commissioner of Insurance, in his
representative capacity as the rehabilitator of Beacon Insurance Co., certain of
the defendant's counterclaims which sought to recover against the
Commissioner and his deputy individually for actions taken beyond the scope
of their statutory authority were 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.
Anderson v. Ohio Dept. of Ins., 58 Ohio St.3d 215, 569 N.E.2d 1042 (1991). Ohio
Department of Insurance ("department") was sued by a Health Maintenance
Organization ("HMO") for alleged negligent actions arising from an order of
the Superintendent of Insurance to liquidate the HMO which was later vacated
by a common pleas court. The Supreme Court of Ohio held that even though a
discretionary decision of the department is not actionable, the manner in
which that decision is carried out is actionable if a special duty is owed by the
department to the HMO. In reversing the court of appeals, however, the court