On Tuesday, April 29, judges on Part F of the Appellate Division will hear oral argument in Newport Associates Development Co. v. Chubb Ins. Co.  The appeal arises out of the denial by the Law Division of the motion of defendant AIG Specialty Insurance Company (“ASIC”) to compel arbitration of plaintiffs’ claim for indemnity in connection with underlying litigation with Consolidated Edison Company of New York, Inc. and Public Service Electric and Gas Company.  The Law Division held that ASIC had waived its contractual right to demand arbitration.

As was the case in another appeal that this blog designated as an Appellate Division oral argument of the week, the arguments in this case center on the facts and procedural history of the case and the applicability of the criteria laid out in Cole v. Jersey City Medical Center, 215 N.J. 265 (2013).  Among other arguments, ACIS compares this appeal to a Third Circuit case where, ACIS says, “a multi-year delay in demanding arbitration was not deemed a waiver because compelling arbitration at the outset would have been futile.”  Plaintiffs counter that, among other things, ACIS’s conduct not only in delaying a demand for arbitration, but in failing to plead arbitration as an affirmative defense, disclaiming any intent to arbitrate, and expressly demanding a jury trial constitute waiver under the Cole factors.

The briefs on this appeal are available here.  The oral livestream can be viewed here.