Opinion
No. 19246
Decided April 13, 1926.
Insurance — Deposits by foreign corporation with state insurance superintendent — Ohio courts not bound to recognize alien liquidator applying for distribution, when — Section 641, General Code.
While upon considerations of judicial comity the courts of this state may recognize a liquidator appointed in another country, judicial comity does not require Ohio courts to recognize an alien liquidator applying under Section 641, General Code, for distribution of a fund which is held in this state for the benefit and security of the policyholders of an alien insurance corporation doing business within this state, when certain of the policies issued by the said alien insurance corporation reinsuring Ohio risks have not matured, and the liabilities of the alien insurance corporation cannot at the present time be determined in a liquidation proceeding.
IN MANDAMUS.
ON REHEARING.
The facts in this case are much the same as those arising in the case of State ex rel. Haavind, Recr., v. Crabbe, Atty. Genl., ante, 504, 151 N.E. 755, this day decided.
The plaintiff is the liquidator of an English fire insurance company. The petition avers that the City Equitable Fire Insurance Company, Limited, was an English corporation, with its principal office in London, England, carrying on the business of fire and marine insurance. In April, 1920, the company was licensed by the superintendent of insurance of the state of Ohio to transact its business within this state, and pursuant to the provisions of Section 9565, General Code of Ohio, it deposited with the superintendent of insurance of the state of Ohio a United States Liberty Loan bond in the denomination of $100,000. This bond was duly turned over to the custody of the treasurer of the state of Ohio.
The petition alleges that on February 6, 1922, proceedings were instituted in the high court of justice, king's bench division, of the kingdom of Great Britain, for winding up the corporation under the provisions of an act of Parliament known as the Company's Consolidation Act; that an order was duly entered for the winding up of the company; and that the relator, who was, and is, the senior official receiver appointed by the board of trade, in conformity with the English statutes, was in due course appointed liquidator of such company.
The petition further alleges that there are policyholders of the company in the United States whose claims have not been fully paid, and that there are policyholders and other creditors residing outside of the United States, and that the claims of all of such policyholders and creditors exceed all of the assets and property deposited in the United States of America, including the deposit in Ohio.
The petition also alleges that the relator made an application in writing to the defendant Crabbe, as Attorney General, to institute an action in the state of Ohio to determine the rights of all parties claiming an interest in the deposit, to subject the same to the payment and satisfaction of all liabilities, and to distribute such fund among the persons entitled thereto; that the defendant Attorney General has failed and declined to bring the action; and that the defendant Conn, as superintendent of insurance, has declined to consent that the action be brought.
The petition prays that a peremptory writ of mandamus issue commanding the defendant Charles Crabbe, as Attorney General, to bring an action on behalf of Harry L. Conn, as superintendent of insurance, and commanding Harry L. Conn, as superintendent of insurance, to consent to the bringing of the action, to determine the rights of the parties claiming an interest in the deposit made under the State Insurance Law, to subject the same to the payment and satisfaction of all liabilities, and to distribute it among the parties entitled thereto.
The answer admits the formal allegations of the petition, and that the defendant Harry L. Conn, as superintendent of insurance, has declined to consent that the action in question be brought on his behalf. Every other allegation in the petition is denied.
The answer further avers that at the time the application to bring the action was made the Attorney General communicated that fact to the superintendent of insurance, who, in writing, requested that action be deferred, for the reason, among others, that another action is pending in the court of common pleas of Franklin county, Ohio, to which the relator is a party, involving the control, custody, right of possession, and ownership, of the funds in question, and that the defendant Harry L. Conn is a garnishee in that action.
The answer further avers that the superintendent of insurance has offered to reinvest the funds in securities of the same general character if all interested parties request in writing that this be done. No reply was filed to this answer. Further facts are stated in the opinion.
Mr. B.W. Gearheart, and Messrs. Barry, Wainwright, Thacher Symmers, for relator.
Mr. Charles C. Crabbe, attorney general, and Mr. C.S. Younger, for defendants.
The alien liquidator, Burgess, is in precisely the same situation, so far as the petitions show, as was the alien receiver Haavind in the case of State ex rel. Haavind, v. Crabbe, Atty. Genl., ante, 504, 151 N.E. 755, this day decided, to which decision we refer for reasoning and authority. The record contains the English statute, under which Burgess was appointed, from which it is evident that the liquidator has broad statutory powers. However, the appointment by the English courts of a statutory liquidator does not vest in him any property right or lien upon the corporation's property in the state of Ohio, superior to the lien of domestic policyholders and creditors. Carpinter Baker v. City Equitable Fire Ins. Co., Ltd., 238 N.Y. 147, 144 N.E. 484. That being the case, whatever standing Burgess has here depends upon comity only. As a matter of strict right the courts of this state are not bound to recognize an alien liquidator. While upon considerations of judicial comity the courts of this state may recognize a liquidator appointed in another country, judicial comity does not require Ohio courts to recognize an alien liquidator applying under Section 641, General Code, for distribution of a fund which is held in this state for the benefit and security of policy holders of a foreign insurance corporation doing business within this state, no policy holder, nor creditor, having applied to the Attorney General to bring an action for distribution under Section 641, General Code.
The instant case differs from the Haavind case in the fact that the record shows that some 98 Ohio individuals and corporations who hold insurance in different insurance companies have had their risks reinsured in the City Equitable Company, and that the aggregate amount of the risks thus reinsured is over $110,000; namely, more than the face amount of the bond held as security. Until these claims have been purchased or matured, any distribution in the liquidation proceeding, if instituted, must be held in abeyance. Hence to grant this right until such time as the liabilities in question have matured or been canceled by the act of the parties would be futile. This fact makes it unnecessary to consider the effect of the assignment executed to Burgess by himself, as liquidator, of the property of the City Equitable Company.
The writ of mandamus is a high, prerogative writ, which does not lie if performance of the act prayed for is impossible. The writ, therefore, will be denied.
Writ denied.
MARSHALL, C.J., DAY, KINEADE and ROBINSON, JJ., concur.