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COURT HOLDS THAT ARBITRATOR SHOULD DECIDE WHETHER AN ARBITRATION PROVISION SURVIVES THE COMMUTATION OF A REINSURANCE AGREEMENT

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A federal judge in the District of Connecticut recently analyzed whether the arbitration provision in a reinsurance agreement was extinguished by a subsequent commutation agreement. The case involved an agreement between the reinsurer, Trenwick America Reinsurance Corporation, and its reinsured Commercial Casualty Insurance Company of Georgia (CCIC). The reinsurance agreement had a “cut through” provision, permitting a direct action by CCIC’s insureds against Trenwick if CCIC became insolvent. In 2004, CCIC became insolvent, and eight years later, one of CCIC’s insureds invoked the cut-through provision and billed Trenwick directly for a claim. Shortly thereafter, Trenwick and the estate of CCIC entered into a commutation agreement under which all reinsurance obligations between Trenwick and CCIC were commuted and extinguished. After Trenwick failed to pay the claim, the insured demanded arbitration, and Trenwick filed suit in federal court seeking to enjoin the arbitration.

The court refused to enjoin the arbitration and granted the insured’s motion to compel arbitration, rejecting Trenwick’s argument that the commutation agreement extinguished the arbitration provision. The court ruled that whether the insured’s claims are subject to arbitration is a question for the arbitrator. It is up to the arbitrator to decide whether the contract containing the arbitration provision was terminated and the effect, if any, of the commutation agreement on the arbitration provision. The court ruled that because the insured was not a party to the commutation agreement, that agreement’s effect on the insured’s rights must necessarily be determined by interpreting the original reinsurance agreement, which is the responsibility of the arbitrator. Trenwick America Reinsurance Corp. v CX Reinsurance Co. Ltd., Case No. 3:13cv1264 (USDC D. Conn. May 23, 2014)

This post written by Catherine Acree.

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CONNECTICUT AMENDS LAW CONCERNING CAPTIVE INSURERS

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Connecticut has amended its law concerning captive insurers doing business in the state to include, in part, a new provision on how foreign captive insurers can become Connecticut domestic companies and revisions on how captive insurers can take credit for certain reinsurance risk. The law defines a “captive insurer” as “an insurance company owned by another organization whose exclusive purpose is to insure risks of the parent organization and affiliated companies or, in the case of groups and associations, an insurance organization owned by the insureds whose exclusive purpose is to insure risks of member organizations and group members and their affiliates.” The changes to the law become effective October 1, 2014. Conn. Sub. Senate Bill No. 188, Public Act No. 14-6.

This post written by Renee Schimkat.

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COURT AMENDS OPINION AND ORDER TO ADD PAYABLE CLAIM UNDER RETROCESSION AGREEMENTS

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A federal district court has amended its opinion and order that held in favor of cedent Munich Re on its breach of contract action against American National Insurance Company to add a covered insurance claim to the list of claims previously deemed properly ceded to ANICO and payable to Munich Re under the parties’ retrocession agreements. In that opinion and order, reported here on March 10, 2014, the court rejected all of ANICO’s claims as to rescission of those agreements and held that Munich Re was entitled to contractual damages in the form of payment on all claims that the court found were properly ceded. The court granted Munich Re’s unopposed motion to amend that opinion and order to include a claim that, by clerical oversight, was previously omitted. Munich Reinsurance America, Inc. v. American National Insurance Co., Case No. 09-6435 (USDC D.N.J. Mar. 25, 2014).

This post written by Renee Schimkat.

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COURT QUASHES SUBPOENA SEEKING UNISSUED ARBITRATION AWARD

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After striking the affirmative defense of failure to mitigate, a court quashed a subpoena issued to an arbitrator seeking an unissued arbitration award in a dispute between certain defendants and their reinsurer. The case involved a lawsuit by a state-appointed receiver, Jo Ann Howard & Associates, against numerous defendants stemming from a scheme to defraud consumers in connection with pre-need funeral services contracts issued by Lincoln Memorial. After Howard was appointed, the receivership court stayed the arbitration proceedings between Lincoln Memorial and its reinsurer, Hannover Life Reassurance Company of America. One of the issues pending in the arbitration at the time was Lincoln Memorial’s claim for damages against Hannover arising from Lincoln Memorial’s allegations that Hannover’s arbitration-related conduct had brought Lincoln Memorial to the brink of insolvency.

Two of the other defendants, both banks, raised as affirmative defenses Howard’s failure to mitigate damages. The banks alleged Howard’s decision not to pursue Lincoln Memorial’s claims against Hannover caused Howard’s damages. The banks subpoenaed the arbitrator in the Lincoln/Hannover arbitration to obtain a copy of the unissued arbitration award. The court granted Howard’s motion to strike the banks’ failure to mitigate defense, finding the defense legally insufficient. The defense was not causally related to Howard’s damages claim because Howard’s claims against Lincoln Memorial arose from Lincoln Memorial’s handling of pre-need trust accounts, and not from Lincoln Memorial’s insolvency. Further, a receiver’s ability to recover assets or damages for wrongdoing is important to the public, and allowing such an affirmative defense would encumber a receiver’s ability to perform these functions. Jo Ann Howard & Associates, P.C. v. J. Douglas Cassity, Case No. 4:09CV01252 ERW (USDC E.D. Mo. May 9, 2014).

This post written by Leonor Lagomasino.

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CLAUSE WHERE PARTY DEMANDING ARBITRATION IS NOT A PARTY TO ALLEGEDLY TERMINATED REINSURANCE AGREEMENT

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A federal district court has taken under advisement plaintiff’s motion for injunction and defendant’s cross-motion to compel arbitration after conducting a hearing on the matter. The issue to be decided is whether CX can compel Trenwick to participate in an arbitration based upon a reinsurance agreement as to which CX was not a party and which, according to Trenwick, was terminated. At the core of this dispute is a reinsurance agreement under which Trenwick reinsured Commercial Casualty Insurance Company. CX argued the reinsurance agreement included a “cut-through” provision which gave CX the right to collect directly against Trenwick even though CX was not a party to the reinsurance agreement. Trenwick denied liability under this cut-through provision and further denied that the cut-through provision gave its beneficiaries, including CX, any rights under the agreement’s arbitration clause. Additionally, Trenwick argued that the reinsurance agreement was terminated further to a commutation agreement between Trenwick and CCIC’s Liquidator and, as a result, terminated any rights CX may have had under the cut-through provision and any requirement to arbitrate CX’s claims. CX responded that it was not a party to the commutation agreement, which could therefore not extinguish CX’s right to arbitrate. CX also argued that Trenwick’s termination defense must be arbitrated. Trenwick America Reinsurance Corp. v. CX Reinurance Company Limited, Case No. 3:13-cv-01264 (JBA) (USDC D. Conn. Apr. 28, 2014).

This post written by Leonor Lagomasino.

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